United States District Court, N.D. Indiana, Hammond Division
DAWN E. DEBOER LAPOLE, Plaintiff,
NANCY A. BERRYHILL, Deputy Commissioner for Operations, Social Security Administration, Defendant.
OPINION AND ORDER
R. CHERRY MAGISTRATE JUDGE UNITED STATES DISTRICT COURT
matter is before the Court on Plaintiff's Motion for
Attorney's Fees Under the Equal Access to Justice Act [DE
26], filed by Plaintiff Dawn E. Deboer Lapole on May 9, 2018.
January 20, 2017, Plaintiff filed a Complaint seeking
judicial review of the Commissioner's decision to deny
her disability insurance benefits and supplemental security
income. On June 27, 2017, Plaintiff filed an Opening Brief.
On August 7, 2017, the Commissioner filed a response. On
August 28, 2017, Plaintiff filed a reply. The Court granted
Plaintiff's request for remand to the agency on February
instant Motion for Attorneys' Fees, Plaintiff seeks fees
under the Equal Access to Justice Act (“EAJA”) in
the amount of $11, 637.39 for 58.5 attorney hours at an
hourly rate of $196.66 and 1.4 legal assistant hours at an
hourly rate of $95.00.
17, 2018, Defendant filed a response brief in opposition to
Plaintiff's fee request, opposing the number of hours as
unreasonable and also opposing the hourly rate. Plaintiff
filed a reply on May 23, 2018. In the reply brief, Plaintiff
requests an additional 1.5 hours of attorney time at $196.66
per hour for preparation of that brief. In total, the amount
requested is $11, 932.60.
Plaintiff 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))). 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.
correctly identifies that courts 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 further supports the number of hours
claimed by arguing that she raised numerous legal issues in
this case, which required a detailed factual assessment of
the administrative record, and that she spent significant
time responding to Defendant's many arguments raised in
the response brief on the request to remand.
counters that the issues involved in this case were neither
novel nor unique and that the administrative record was not
“excessively long.” Defendant suggests that the
number of hours claimed for preparing the opening brief-36
hours-should be reduced to 20 hours. Defendant similarly
argues that the 16 hours claimed for the reply brief should
be reduced to 8 hours, as the issues in the reply brief were
the same issues presented in the opening brief. Defendant
also asserts that Plaintiff has not justified the time spent
by Attorney Schultz in drafting a memorandum in this case.
the legal issues presented in this Social Security case may
be frequently raised, the facts that apply to those legal
matters are unique to each case. Plaintiff's medical
history, testimony, and other evidence of record are entirely
her own and have not been seen in this exact combination
before. Though the 644- page administrative record is not the
longest record that has been before this Court, it is also
not the shortest, and 644 pages of material necessarily take
time to review. The Court finds that Plaintiff has justified
the number of hours spent on the opening brief.
the underlying issues may be the same in the opening brief
and the reply brief, Plaintiff, in her reply, responded to
Defendant's arguments raised in the response. Without a
clearer or more precise argument for reducing the hours spent
on the reply brief, the Court discerns no reason to reduce
the number of hours by half.
Plaintiff represents that the normal practice in her
counsel's office is for a senior attorney to do an
initial review of a case to identify the issues to be raised
and to prepare a general outline so that less experienced
attorneys focus their energy on relevant issues and draft
well-organized briefs. The itemization of time reports that
Attorney Schultz spent 1.5 hours drafting the memorandum.
This Court finds this time to be reasonably expended and not
there is a statutory cap of an hourly rate of $125.00 for
reasonable attorney fees under the EAJA, established in March
1996. 28 U.S.C. § 2412(d)(2)(A)(ii). However, the
statute allows for a cost of living adjustment when
“the court determines that an increase in the cost of
living or a special factor, such as the limited availability
of qualified attorneys for the proceedings involved,
justifies a higher fee.” Id. “Courts
should generally award the inflation-adjusted rate according
to the [Consumer Price Index], using the date on which the
legal services were performed.” Sprinkle v.
Colvin, 777 F.3d 421, 428 (7th Cir. 2015). It is within
the Court's discretion to choose between the U.S. City
Average and a regional rate. See Wright v.
Berryhill, 1:14cv8163, 2017 WL 2588218, at * 2 (N.D.
Ill. June 14, 2017); see also Sprinkle, 777 F.3d at
428 n. 2. In this case, Plaintiff requests compensation at
$196.66 per hour for attorney time, the national rate under
the Consumer Price index for June 2017, the month in which
the majority of legal work was performed by counsel.
Defendant requests that the rate be reduced to $189.34, the
Chicago region rate for the same time period. Plaintiff has
provided the affidavits of attorneys who provide similar
services. These affidavits support a finding that an hourly
rate of $196.66 is reasonable. The Court finds that
Plaintiff's requested hourly rate is commensurate with
counsels' and counsels' firm's experience. For
all these reasons, and contrary to the Commissioner's
assertion that the hourly rate should be based only on the
Chicago region market, the Court finds the hourly rate of
$196.66 for the attorney work provided in June 2017 is
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 ...