United States District Court, S.D. Indiana, Indianapolis Division
JONATHAN S. P., Plaintiff,
NANCY A. BERRYHILL, Defendant.
ORDER ON PLAINTIFF'S MOTION FOR AWARD OF ATTORNEY
FEES PURSUANT TO THE EQUAL ACCESS TO JUSTICE ACT [DKT.
J. DINSMORE JUDGE
matter comes before the Court on Plaintiff's Motion
for Award of Attorney Fees Pursuant to the Equal Access to
Justice Act [Dkt. 28]. For the following
reasons, the Court GRANTS Plaintiff's
21, 2018, Plaintiff filed his Opening Social Security
Brief to reverse the ALJ's unfavorable finding and
remand for further proceedings. [Dkt. 21.] On August
15, 2018, the parties filed a joint motion to remand the case
[Dkt. 25], which the Court granted. [Dkt.
26.] Final judgment was entered on August 16, 2018.
[Dkt. 27.] Plaintiff filed a Motion for Award of
Attorney Fees Pursuant to the Equal Access to Justice
Act with supporting documentation on November 12, 2018,
requesting an EAJA award of attorney's fees in the amount
of $2, 923.00 [Dkt. 28.] 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 his 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 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 August 16, 2018. [Dkt. 27.] Thus,
Plaintiff's November 12, 2018 petition for attorney fees
was timely filed. [Dkt. 28.]
Plaintiff's Motion, [Dkt. 28 at 1-2], Plaintiff
contends 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. 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 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 agreed to remand thereby electing not to carry
her burden of proving that her position was substantially
justified. [Dkt. 25.] 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. 28 at 2.] 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 an itemized
statement as Exhibit B to his Motion for Award of
Attorney Fees Pursuant to the Equal Access to Justice
Act that tracks the hours worked by his attorney,
Matthew F. Richter, on this matter. [Dkt. 28-3.]
Additionally, Plaintiff makes a representation of the
reasonable rate of computation, as required by the EAJA.
[Dkt. 28 at 3; Dkt. 28-2; Dkt.
28-3; Dkt. 28-4; Dkt. 28-5.] Thus,
Plaintiff has met the threshold requirement of presenting the
Court with both the hours expended by his attorney 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 “requests an hourly rate in accordance with
[the] statute adjusted due to the increase in cost of
providing legal services and prevailing market rates.”
[Dkt. 28-2.] Plaintiff provided Exhibits C and D as
support for the increase in Services of Lawyers, Producer
Price Index, and the Consumer Price Index as evidence for his
asserted $185.00 hourly rate requested in this case.
[Dkt. 28-2.] Here, Plaintiff asserts that beginning
in March 1996 the CPI-Midwest Urban Consumers Index was 151.7
and as of 2014 the increase of the cost of living was 1.486
(225.42/151.7); thus, “the maximum hourly rate for 2014
is $185.74 ($125.00 x 1.486).” [Dkt. 28-2.]
Mr. Richter's hours in this case were completed between
2017 and 2018 but are based upon a lower 2014 rate; thus, the
Court finds the hourly rate of $185.00 to be reasonable. The
Court finds these 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. Richter
asserted he worked a total of 9.80 hours on this case and his
non-attorney staff expended a total of 11.10 hours. [Dkt.
28-3.] The Court has reviewed the itemized time records
of services rendered and finds Plaintiff's counsel
employed proper “billing judgment” with regard to
his work on this case. The Court finds that the number of
hours worked appears reasonable.
Plaintiff requested a fee award for services performed by
non-attorney staff. [Dkt. 28-3.] If an
attorney's fee is awarded, the services of paralegals
should be taken into account. Missouri v. Jenkins,
491 U.S. 274, 286-87 (1989). Plaintiff asserted 11.10 hours
were expended by non-attorney staff in this case at the rate
of $100.00 per hour. [Dkt. 28-3.] The Court finds
the hours for the work performed, as well as the hourly rate
for non-attorney staff in this case, are reasonable. See,
e.g.,Chorak v. ...