United States District Court, N.D. Indiana, Fort Wayne Division
JAMES L. FRANKLIN, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.
OPINION AND ORDER
R. CHERRY MAGISTRATE JUDGE
matter is before the Court on Plaintiff's Motion for
Attorney's Fees Under the Equal Access to Justice Act [DE
22], filed by Plaintiff James L. Franklin on March 22, 2018.
5, 2017, Plaintiff filed a Complaint seeking judicial review
of the Commissioner's decision to deny him disability
insurance benefits. On October 12, 2017, Plaintiff filed an
Opening Brief. On December 22, 2017, the Commissioner filed a
consented motion to remand the case pursuant to sentence four
of 42 U.S.C. § 405(g). The Court granted that motion on
January 3, 2018.
instant Application for Attorneys' Fees, Plaintiff seeks
fees under the Equal Access to Justice Act
(“EAJA”) in the amount of $7, 799.82 for 6.6
attorney hours at a rate of $195.73 per hour, 51 “law
clerk with a J.D.” hours at an hourly rate of $125.00,
and 1.4 legal assistant hours at an hourly rate of $95.00.
March 28, 2018, the Commissioner filed a response brief in
opposition to Plaintiff's fee request. The Commissioner
argues that the number of hours claimed by the law clerk is
excessive and that the hourly rate charged for the law clerk
is unreasonable. Plaintiff did not file a reply.
bears the burden of demonstrating that the requested hours
are reasonable. Hensley v. Eckerhart, 461 U.S. 424,
437 (1983). Counsel for the prevailing party should make a
good-faith effort to exclude excessive, redundant, or
otherwise unnecessary hours. Id. at 434; see
also Tchemkou v. Mukasey, 517 F.3d 506, 510 (7th Cir.
2008) (“When calculating an EAJA award, we must exclude
hours that were not reasonably expended and we may reduce the
amount of the award accordingly.” (internal quotation
marks omitted) (quoting Hensley, 461 U.S. at 434 and
citing 28 U.S.C. § 2412(d)(1)(C))). Plaintiff represents
that the number of law clerk hours has been reduced by 20
hours because the law clerk was relatively new at the time
she performed work on the opening brief, and that the 20
hours not claimed represent time spent training the law
clerk, which are not properly billed to the government. The
amount of the fee award is a matter of discretion for the
Court because of its “superior understanding of the
litigation and the desirability of avoiding frequent
appellate review of what essentially are factual
matters.” Hensley, 461 U.S. at 437.
Commissioner contends that the number of hours claimed by
Plaintiff is excessive because, in light of the motion to
remand, Plaintiff needed to neither draft and file a reply
brief nor prepare for a hearing. The Commissioner requests a
reduction of the law clerk's hours to 26 hours, citing a
case in which a court found 25.2 hours to be not per se
excessive for drafting an opening brief. The Commissioner
further argues that, in light of the law clerk's little
experience and the necessity of over six hours of attorney
review, the hourly rate for the law clerk with J.D. should be
reduced to $95. The requested reduction of hours and rate
would decrease the award to $3, 894.82.
within the Seventh Circuit Court of Appeals have found a
reasonable number of hours for work on a social security
appeal to range from 40-60 hours. See, e.g.,
Copeland v. Astrue, No. 2:11-CV-363, 2012 WL
4959482, at *2 (N.D. Ind. Oct. 17, 2012) (citing cases);
Schulten v. Astrue, No. 08 C 1181, 2010 WL 2135474,
at *6 (N.D. Ill. May 28, 2010) (citing cases). Plaintiff
requests fees for 59 hours of work.
other courts have found lesser hours to be reasonable does
not, in itself, make higher hours unreasonable. Here, the
hours were spent by a law clerk, who has a lower hourly rate
than an attorney. The administrative record is 858 pages.
Perhaps, if the hours performed by the law clerk were
performed by an attorney, then the hours spent may have been
unreasonable, but the Court need not resolve that
counterfactual question. In light of the circumstances of
this case, the Court finds the 51 hours requested for time
spent by the law clerk with a J.D. to be reasonable.
is commonplace for attorneys to use law clerks to assist with
preparing Social Security briefs, and because of their
limited experience, it is also expected that senior attorneys
will spend time reviewing the work completed by law
clerks.” Dross-Swart v. Colvin, No.
2:11-CV-175, 2013 WL 2250280, at *2 (N.D. Ind. May 21, 2013)
(citing Beardsley v. Astrue, No. 2:07-C-776, 2011 WL
3566930, *2 (E.D. Wis. Aug. 15, 2011)). In circumstances such
as these, where the law clerk has a law degree and performs
substantive work, an hourly rate of $125 is reasonable.
See Id. (citing Beardsley, 2011 WL
reviewed the fee petition, the Court finds that the number of
hours and the hourly rates to be reasonable and not excessive
in light of the facts and circumstances of this case and
consistent with the range of fee requests in social security
litigation before this Court.
the Court hereby GRANTS Plaintiff's
Motion for Attorney's Fees Under the Equal Access to
Justice Act [DE 22] and ORDERS that
Plaintiff is awarded attorney fees in the total amount of $7,
799.82 in fees pursuant to the Equal Access to Justice Act,
28 U.S.C. § 2412. If the Government determines that
Plaintiff does not owe a pre-existing debt subject to offset,
the Commissioner shall direct that the award ...