United States District Court, N.D. Indiana, Fort Wayne Division
OPINION AND ORDER
Collins, United States Magistrate Judge
the Court is Plaintiff Andrew Banks's motion to recover
attorney's fees in the amount of $10, 393.00 under the
Equal Access to Justice Act (“EAJA”), 28 U.S.C.
§ 2412, together with supporting
documents. (DE 27; DE 28). Defendant Commissioner of
Social Security (“Commissioner”) opposes the
amount of Banks's fee request, arguing that: (1) the 54.7
hours billed by Banks's counsel in the district court
litigation were not reasonably expended; and (2) that counsel
should have calculated their hourly rates using the cost of
living adjustment for the geographic region where the case
was litigated, rather than the national rate. (DE 33). Banks
timely filed a reply brief (DE 34), and thus the motion is
ripe for ruling.
following reasons, Banks's motion for EAJA fees will be
Applicable Legal Standard
the EAJA, “[e]xcept as otherwise specifically provided
by statute, a court shall award to a prevailing party other
than the United States fees and other expenses . . . incurred
by that party in any civil action . . . brought by or against
the United States . . . unless the court finds that the
position of the United States was substantially justified . .
. .” 28 U.S.C. § 2412(d)(1)(A). Here, the
Commissioner does not raise a substantial justification
argument in response to Banks's fee request. Rather, the
Commissioner challenges the number of hours expended by
Banks's counsel in this litigation and the cost of living
index used by counsel when calculating their hourly rate. The
Court will address each of these arguments, in turn.
The Number of Attorney Hours Billed
as the fee applicant, bears the burden of proving that the
EAJA fees sought are reasonable. See 28 U.S.C.
§ 2412(d)(1)(B); Hensley v. Eckerhart, 461 U.S.
424, 437 (1983). Factors the Court should consider in
evaluating the reasonableness of a fee request are:
(1) the time and labor required; (2) the novelty and
difficulty of the questions; (3) the skill requisite to
perform the legal service properly; (4) the preclusion of
employment by the attorney due to acceptance of the case; (5)
the customary fee; (6) whether the fee is fixed or
contingent; (7) time limitations imposed by the client or the
circumstances; (8) the amount involved and the results
obtained; (9) the experience, reputation, and ability of the
attorneys; (10) the “undesirability” of the case;
(11) the nature and length of the professional relationship
with the client; and (12) awards in similar cases.
Hensley, 461 U.S. at 430 n.3.
that are not properly billed to one's client
also are not properly billed to one's adversary
pursuant to statutory authority.” Id. at 434
(citation omitted). “As a result, the prevailing party
should make a good-faith effort to exclude from a fee request
hours that are excessive, redundant, or otherwise
unnecessary.” Davenport v. Astrue, No.
2:07-CV-0064-PRC, 2008 WL 2691115, at *7 (N.D. Ind. July 3,
2008) (citing Hensley, 461 U.S. at 434). “The
amount of a fee award is left to the discretion of the
district court because of its ‘superior understanding
of the litigation and the desirability of avoiding frequent
appellate review of what essentially are factual
matters.'” Id. (quoting Hensley,
461 U.S. at 437).
Commissioner argues that Banks fails to meet his burden of
showing that the 54.7 hours billed by his attorneys were
reasonably expended. (DE 33 at 3). The Commissioner contends
that the hours were excessive given that: (1) the two
arguments that Banks advanced in his appeal were not complex
or novel legal issues, but rather, were issues commonly
litigated in Social Security cases; (2) the administrative
record in this case was only 416 pages, of which just 87
pages were medical records; and (3) some of the medical
records were of limited relevance in that they related to
Banks's medical issues in 2009 and early 2010, while he
was still working and prior to his alleged onset date in
December 2010. (DE 33 at 3).
the length of the administrative record, the Commissioner
challenges the 29 hours that Banks's counsel spent on his
opening brief. (DE 33 at 3). The Commissioner further
observes that the facts and procedural history section of
Banks's opening brief was 17 pages, but the argument
section was just half of that, eight pages. (DE 33 at 3). The
Commissioner also believes that the 17.5 hours counsel spent
on Banks's reply brief and the 3.8 hours spent on his
EAJA fee petition and supporting brief are excessive, noting
that many of the arguments are identical to those presented
by Banks's counsel in their other Social Security
cases. (DE 33 at 3). As the Commissioner sees it,
Banks's lead counsel has extensive experience in
litigating Social Security cases, which should reasonably
translate to efficiencies in presenting arguments to the
Court. (DE 33 at 3). For all of these reasons, the
Commissioner asks that the Court deduct 10 hours of attorney
time from Banks's fee request. (DE 33 at 4).
Commissioner's arguments, however, are not persuasive.
“To begin with, a 400-page administrative record is not
short.” Monk v. Colvin, No. 2:15-cv-233, 2016
WL 4445659, at *2 (N.D. Ind. Aug. 23, 2016) (citations
omitted). And even if some medical records were less relevant
to the appeal than others due to the date the medical care
was administered, “[Banks's] attorneys had to sift
through everything to separate the wheat from the
chaff.” Id. Furthermore, this is not
a case where Banks's counsel also represented him at the
administrative level (DE 28 at 8); thus, counsel had to
review the administrative record for the first time during
the district court litigation. See Seefeldt v.
Colvin, No. 14-CV-320, 2016 WL 5793683, at *1 (E.D. Wis.
Sept. 30, 2016) (“[C]ounsel did not represent [the
claimant] at the administrative level and therefore had to
familiarize herself with the record.”).
although the Commissioner argues that the issues raised in
this case were routine and that counsel could have reviewed
the record and drafted the opening brief in less time, the
Commissioner “has identified nothing in the [opening]
brief that could have been eliminated[.]”
Monk, 2016 WL 4445659, at *2; see Staley v.
Berryhill, No. 4:15-cv-00178-TAB-RLY, 2017 WL 2181151,
at *1 (S.D. Ind. May 18, 2017) (“[T]he Commissioner
fails to identify any factual or procedural background that
Staley should have omitted.” (citation omitted)). In
fact, “most social security cases do not present
particularly complex legal issues, but that does not mean
that providing a thorough exegesis of the record, pointing
out various pieces of evidence ...