United States District Court, S.D. Indiana, Indianapolis Division
ORDER ON PLAINTIFF'S MOTION FOR ATTORNEY FEES
UNDER THE EQUAL ACCESS TO JUSTICE ACT [DKT. 28]
J. DINSMORE JUDGE
matter comes before the Court on Plaintiff's Motion
for Attorney Fees Under the Equal Access to Justice Act
[Dkt. 28]. For the following reasons, the Court
GRANTS Plaintiff's Motion.
February 27, 2018, Plaintiff filed her initial brief in
support of her Complaint for judicial review to
reverse the ALJ's unfavorable finding and remand for
further proceedings. [Dkt. 18.] On September 17,
2018, the Court reversed the Commissioner's decision and
remanded Plaintiff's claim for further proceedings.
[Dkt. 26.] Final judgment was entered in favor of
the Plaintiff. [Dkt. 27.] Plaintiff filed a
Motion for Attorney Fees Under the Equal Access to
Justice Act with supporting documentation on December
17, 2018, requesting an EAJA attorney fee award in the amount
of $2, 959.97. [Dkt. 28; Dkt. 29.]
Defendant did not file a response to Plaintiff's Motion.
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 Petition for EAJA fees, the movant
must, “within thirty days of final judgment in the
action, ” file her application (1) showing that she 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 Plaintiff's motion for
fees 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 September 17, 2018. [Dkt. 27.]
Thus, Plaintiff's December 17, 2018 petition for attorney
fees was timely filed. [Dkt. 28; Dkt. 29.]
See28 U.S.C. § 2412(d)(1)(B); Fed.R.Civ.P.
brief in support [Dkt. 29], Plaintiff contends she
meets the “prevailing party” requirement of the
EAJA pursuant to the standard set forth by the U.S. Supreme
Court in Shalala v. Schaefer. 509 U.S. 292 (1993).
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. Id. at 300. 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 Commissioner bears the burden of proving that her
pre-litigation conduct, including the ALJ's decision
itself, and her litigation position were substantially
justified. See Stewart v. Astrue, 561 F.3d 679, 683
(7th Cir. 2009). In the matter before the Court, the
Commissioner did not file a Response to
Plaintiff's Motion 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
Commissioner's position in this matter was not
Plaintiff asserted the fees requested are reasonable pursuant
to the terms of the EAJA. [Dkt. 29 at 3-7.] As a
threshold requirement, 28 U.S.C. § 2412(d)(1)(B) of the
EAJA 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.” Plaintiff attached itemized statements
as Exhibit A and Exhibit B to her Motion for Attorney
Fees Under the Equal Access to Justice Act that tracks
the hours worked by her attorneys, J. Frank Hanley, II and
Eric Schnaufer, on this matter. [Dkt. 29-1; Dkt.
29-1.] Additionally, Plaintiff makes a representation of
the reasonable rate of computation, as required by the EAJA.
[Dkt. 29 at 3-7.] Thus, Plaintiff has met the
threshold requirement of presenting the Court with both the
hours expended by her 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 $125.00 per hour, the language additionally 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 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.
Plaintiff referenced the March 1996 Midwest Urban CPI-All
Items Index at 151.7, with an increase in the cost of living
for 2017 at 1.515319 (229.874/151.7) and for the First Half
of 2018 at 1.540217 (233.651/151.7). [Dkt. 29 at
3-4; Dkt. 29-3.] To complete the fee
calculations accordingly, the Annual 2017 and First Half of
2018 index totals are multiplied by the $125.00 per hour
statutory cap; as such, for 2017 Plaintiff asserted a rate of
$189.41, and for the First Half of 2018, a rate of $192.53.
[Dkt. 29 at 7.] In further support, Plaintiff
submitted a rate survey for Indianapolis - Carmel Indiana for
2008 which illustrated the “lowest quartile standard
hourly rate for an attorney with under two years of
experience was $185.” [Dkt. 29 at 5; Dkt.
29-4.] As Mr. Hanley and Mr. Schnaufer have practiced
law between twenty and forty years, the lowest quartile of
the rate survey would reflect hourly rates between $345 and
$391. [Dkt. 29 at 5; Dkt. 29-4.] The Court
finds Plaintiff's requested rates are consistent with the
inflation-adjusted rate, the depth of counsel's
experience, the prevailing market rate in the community by
lawyers of comparable skills and experience, and the rate
approved in other similar disability cases in this district.
See, e.g., Rabe v. Astrue, 2011 WL 2899063
(S.D. Ind. July 15, 2011); Neal v. Colvin, 2013 WL
4479802 (S.D. Ind. Aug. 19, 2013); Little v. Colvin,
2014 WL 30032 (S.D. Ind. Jan. 3, 2014).
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). Mr. Hanley asserted
1.80 hours of expended attorney time on this case, of which
1.60 hours were completed in 2017 and 0.20 hours were
expended in the First Half of 2018. [Dkt. 29 at 7.] Mr.
Schnaufer asserted 13.60 hours of expended attorney time on
this case, of which all hours were completed in the First
Half of 2018. [Dkt. 29 at 7.] The Court has
reviewed the itemized time records of services rendered and
finds Plaintiffs counsel employed proper “billing
judgment” with regards to each attorney's work on
this case. The Court finds that the number of hours worked
the Court is not aware of any “conduct which unduly and
unreasonably protracted the final resolution of the matter in
controversy” having taken place on behalf of Plaintiff
or her counsel. Therefore, the Court will not reduce or deny
an award ...