United States District Court, S.D. Indiana, Terre Haute Division
ORDER ON JOINT MOTION FOR ATTORNEY FEES [DKT.
J. DINSMORE UNITED STATES MAGISTRATE JUDGE.
November 1, 2018, the parties filed their Joint Motion
for Plaintiff's Attorney Fees Under the Equal Access to
Justice Act, seeking an attorney fee award to Plaintiff
of $2, 619.14 in fees. [Dkt. 16] On November 21, 2018, the
Court issued an Order to Show Cause [Dkt. 17],
allowing Plaintiff to provide appropriate documentation in
support of the fee petition. Plaintiff filed his supplemental
Joint Motion for Plaintiff's Attorney Fees Under the
Equal Access to Justice Act, [Dkt. 18] on November 29,
2018. For the following reasons, the motion is
filed his Complaint with this Court on March 8, 2018. [Dkt.
1.] On August 24, 2018, the parties filed a joint motion to
remand the case [Dkt. 13], which the Court granted. [Dkt.
14.] Final judgment was entered on August 28, 2018. [Dkt.
to the Equal Access to Justice Act (“EAJA”),
“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.” 28 U.S.C. § 2412(d)(1)(A). In
order to succeed in a motion for EAJA fees, the movant must,
“within thirty days of final judgment in the action,
” file an application (1) showing that he is a
“prevailing party, ” (2) providing the Court with
an itemized statement that represents the computation of the
fees requested, and (3) alleging that the position taken by
the United States was “not substantially
justified.” 28 U.S.C. § 2412(d)(1)(B).
Additionally, the Court may, in its discretion, reduce or
deny the award of fees and expenses if the prevailing party
“engaged in conduct which unduly and unreasonably
protracted the final resolution of the matter in
controversy” during the course of the proceedings. 28
U.S.C. § 2412(d)(1)(C).
the Court must determine whether the fee petition was timely
filed. Section 2412(d)(1)(B) of the EAJA states that an
application for fees and expenses must be filed “within
thirty days of final judgment in the action.” The
Supreme Court has clarified that the “30-day EAJA clock
begins to run after the time to appeal that ‘final
judgment' has expired, ” which in this case is 60
days. Melkonyan v. Sullivan, 501 U.S. 89, 96 (1991).
The Court entered final judgment on August 28, 2018. [Dkt.
27.] The November 1, 2018 fee motion was filed well within 90
days of the entry of judgment and was therefore timely filed.
asserts he meets the “prevailing party”
requirement of the EAJA pursuant to the standard set forth by
the U.S. Supreme Court in Shalala v. Schaefer. In
Shalala, the Supreme Court confirmed that a
Plaintiff whose complaint is remanded to an administrative
law judge for further consideration qualifies as a
“prevailing party” under section 2412(d)(1)(B) of
the EAJA. 509 U.S. 292, 300 (1993). Because the Court in this
matter remanded Plaintiff's case to an administrative law
judge for such further consideration, Plaintiff indeed meets
the prevailing party requirement of the EAJA.
the Court considers whether the Deputy Commissioner's
position was “not substantially justified.”
See Stewart v. Astrue, 561 F.3d 679, 683
(7th Cir. 2009). In this matter, the Deputy Commissioner
agreed to remand thereby electing not to carry her burden of
proving that her position was substantially justified.
Therefore, Plaintiff meets the EAJA's threshold
requirement of asserting that the Deputy Commissioner's
position in this matter was not substantially justified.
the Court considers if the fees requested are reasonable
pursuant to the terms of the EAJA. As a threshold
requirement, 28 U.S.C. § 2412(d)(1)(B) requires
Plaintiff to submit “an itemized statement from any
attorney or expert witness representing or appearing in [sic]
behalf of the party stating the actual time expended and the
rate at which fees and other expenses were computed.”
Here, Plaintiff submitted his attorney's statement, an
itemized statement of the time expended on the case, and the
hourly rate requested, [Dkt. 18; Dkt. 18-1; Dkt. 18-2.] The
itemized statement tracks the hours worked by Thomas C.
Newlin, the Plaintiff's attorney on this matter. [Dkt.
18-2.] Additionally, Plaintiff makes a representation of the
reasonable rate of computation, as required by the EAJA.
[Dkt. 18-1.] Thus, Plaintiff has met the threshold
requirement of presenting the Court with both the hours
expended by his attorneys on the matter and the rate used to
compute the total fees sought.
Plaintiff has met the burden of presentation regarding the
amount of fees sought, the Court must determine whether such
fees are reasonable pursuant to the EAJA. A
reasonable EAJA fee is calculated under the lodestar method
by multiplying a reasonable number of hours expended by a
reasonable hourly rate. Astrue v. Ratliff, 560 U.S.
586, 602 (2010). Although the hourly rate is statutorily
capped at $125 an hour, the statutory language permits the
Court to allow for “an increase in the cost of
living” to justify a higher hourly rate. 28 U.S.C.
§ 2412(d)(2)(A). In order to prove that such an increase
is justified, the Seventh Circuit recently held that
“an EAJA claimant may rely on a general and readily
available measure of inflation such as the Consumer Price
Index, as well as proof that the requested rate does not
exceed the prevailing market rate in the community for
similar services by lawyers of comparable skill and
experience.” Sprinkle v. Colvin, 777 F.3d 421,
423 (7th Cir. 2015). Reliance solely on a readily available
measure of inflation is not sufficient, as an
inflation-adjusted rate might result in a rate higher than
the prevailing market rate in the community for comparable
legal services, creating a windfall, which is to be avoided.
Id. at 428-29.
failed to articulate an argument regarding calculation of the
prevailing hourly rate during the relevant time period.
However, the Court takes notice of its prior order in which
it determined that Consumer Price Index data demonstrates
that the prevailing hourly rate for attorney time during 2018
was $185. Allen v. Berryhill, No.
1:17-cv-2646-MJD-TWP at Dkts. 31 at 5. The Court finds that
an hourly rate of $185 is consistent with the
inflation-adjusted rate, the depth of counsel's
experience, and the prevailing market rate in the community
by lawyers of comparable skills and experience. In addition,
this hourly rate is consistent with the rate approved in
other similar disability cases in this district. See,
e.g., Neal v. Colvin, No. 1:12-cv-885-WTL-TAB
at Dkts. 25 and 27; see also Bledsoe v. Colvin,
1:14-cv-00011-SEB-MJD at Dkt. 26. Plaintiff has presented
sufficient proof that an hourly rate of $185 is reasonable.
the Court must decide whether the number of hours reportedly
worked by counsel appears sufficiently reasonable. The
Seventh Circuit commands that an attorney use the same
“billing judgment” with the Court that he or she
would implement when presenting a client with the legal bill.
Spegon v. Catholic Bishop of Chi., 175 F.3d 544, 552
(7th Cir. 1999). As explained by the Supreme Court,
“[c]ounsel for the prevailing party should make a good
faith effort to exclude from a fee request hours that are
excessive, redundant, or otherwise unnecessary, just as a
lawyer in private practice ethically is obligated to exclude
such hours from his fee submission.” Hensley v.
Eckerhart, 461 U.S. 424, 434 (1983). Counsel reported
16.75 hours of attorney time expended on this case. [Dkt.
18-2.] The Court has reviewed the itemized time records and
finds counsel employed proper “billing judgment”
with regard to his work on this matter and the number of
hours worked appears reasonable.
the Court is not aware of any “conduct which unduly and
unreasonably protracted the final resolution of the matter in
controversy” on behalf of Plaintiff or his counsel.
Therefore, the Court will not reduce or deny an award of ...