United States District Court, N.D. Indiana, Fort Wayne Division
OPINION AND ORDER
Collins United States Magistrate Judge
the Court is Plaintiff Brent Miller's petition to recover
attorney fees in the amount of $10, 773.00 and $420.67 in
costs and expenses under the Equal Access to Justice Act
(“EAJA”), 28 U.S.C. § 2412, together with
supporting documents. (DE 23; DE 24; DE 27). Defendant
Commissioner of Social Security (“Commissioner”)
opposes the amount of Miller's fee request, arguing that:
(1) the 56.7 hours billed by Miller's counsel in the
district court litigation were not reasonably expended; and
(2) 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
25). Miller timely filed a reply brief (DE 27), and thus the
motion is ripe for ruling.
following reasons, Miller'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 Miller's fee request. Rather, the
Commissioner challenges the number of hours expended by
Miller'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
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 Miller fails to meet his burden of
showing that the 56.7 hours billed by his attorneys were
reasonably expended. (DE 25 at 1-5). The Commissioner
contends that the hours were excessive given that: (1) the
five arguments that Miller advanced in his appeal were not
complex or novel legal issues, but rather, were issues
commonly litigated in Social Security cases; and (2) the
administrative record in this case was only 455 pages. More
particularly, the Commissioner claims that the 6.8 hours that
Miller's counsel spent revising his opening brief is
excessive given his counsel's extensive experience
litigating Social Security matters and the routine arguments
advanced in the brief, which should reasonably translate to
efficiencies in presenting arguments to the Court. (DE 25 at
4). The Commissioner further asserts that the 15 hours
Miller's counsel spent drafting his reply brief is
excessive, given that the reply brief “followed the
basic outline, argumentation, and legal authority from the
opening brief.” (DE 25 at 4). As such, the Commissioner
contends that Miller's 56.7 hours should be reduced by 10
hours, to a total of 46.7 hours.
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 portions of the administrative
record were less relevant to the appeal than others,
“[Miller's] attorneys had to sift through
everything to separate the wheat from the chaff.”
Id. Furthermore, this is not a case where
Miller's counsel also represented him at the
administrative level (DE 27 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 thus, that counsel could have
reviewed the record and drafted the opening and reply briefs
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[.]”
Monk, 2016 WL 4445659, at *2 (citation omitted).
“[B]ut that does not mean that providing a thorough
exegesis of the record, pointing out various pieces of
evidence that the administrative law judge overlooked or
misrepresented, and explaining why those oversights are
material to the outcome does not take time.”
Id. (citation omitted).
courts within the Seventh Circuit have found that a
reasonable number of hours for work on a social security
appeal ranges from 40 hours to 60 hours, see
Kinsey-McHenry v. Colvin, No. 2:12-CV-332-PRC, 2014 WL
1643455, at *3 (N.D. Ind. Apr. 23, 2014) (collecting cases),
and this case falls within that range. While 41.7 hours is on
the high side for reviewing the record and preparing and
revising the opening brief in a case with a 455-page
transcript, it is not patently unreasonable, as Miller did
advance five arguments even if they were fairly routine.
See, e.g., Koelling v. Colvin, No.
2:15-cv-233, 2016 WL 1161338, at *2 (N.D. Ill. Mar. 24, 2016)
(finding that 43 hours spent reviewing a 660-page record and
drafting an opening brief presenting four arguments was not
unreasonable); Monk, 2016 WL 4445659, at *2 (finding
37.6 hours spent reviewing the record and drafting the
opening brief “on par with the time that other courts
in this circuit have found reasonably expended during the
initial stage of a social security appeal” (citations
omitted)). Nor does spending 15 hours on a reply brief exceed
the acceptable range of hours. See, e.g.,
Groskreutz v. Barnhart, No. 02-C-454-C, 2005 WL
567814, at *2 (W.D. Wis. Feb. 28, 2005) (while spending
nearly 20 hours on a 10-page reply brief was on the high
side, it was not ...