United States District Court, S.D. Indiana, Indianapolis Division
ORDER ON PLAINTIFF'S PETITION FOR ATTORNEY FEES
UNDER THE EQUAL ACCESS TO JUSTICE ACT [DKT. 22]
MARK
J. DINSMORE JUDGE
This
matter comes before the Court on Plaintiff's Petition
for Attorney Fees Under the Equal Access to Justice Act
[Dkt. 22]. For the following reasons, the Court
GRANTS Plaintiff's Motion.
I.
Background
“On
June 22, 2017, the ALJ issued a partially favorable decision
for disability benefits.” [Dkt. 1 at 2.] On
November 6, 2018, Plaintiff filed his Brief in Support of
Plaintiff's Complaint seeking judicial review to
reverse the ALJ's unfavorable finding and remand for
further proceedings. [Dkt. 12.] On March 6, 2019,
the Court reversed the Commissioner's decision, in part,
pertaining to the ALJ's denial of Plaintiff's
benefits prior to November 28, 2015, and remanded
Plaintiff's claim for further proceedings. [Dkt.
20.] Final judgment was entered in favor of Plaintiff.
[Dkt. 21.] Plaintiff filed a Petition for
Attorney Fees Under the Equal Access to Justice Act with
supporting documentation on March 15, 2019, requesting an
EAJA award of attorney fees and costs in the amount of $3,
596.72. [Dkt. 22; Dkt. 23.] On March 15,
2019, Defendant filed a Response to Plaintiff's
Petition for Attorney Fees Under the Equal Access to Justice
Act which stated no objection to Plaintiff's
petition for fees totaling $3, 196.72 and costs of $400.00
would be filed. [Dkt. 24.]
II.
Discussion
Pursuant
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).
First,
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 March 6, 2019. [Dkt. 21.] Thus,
Plaintiff's March 15, 2019, petition for attorney fees
was timely filed. [Dkt. 22.]
In his
brief in support [Dkt. 23 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 EAJA.
Next
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
Defendant's Response to Plaintiff's petition
did not articulate any objection to Plaintiff's petition,
nor did the Response argue that the
Commissioner's position was substantially justified.
[Dkt. 24.] Therefore, Plaintiff meets the EAJA's
threshold requirement of asserting that the
Commissioner's position in this matter was not
substantially justified.
Finally,
Plaintiff asserted the fees requested are reasonable pursuant
to the terms of the EAJA. [Dkt. 23 at 2-4.] 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 A to his Petition for Attorney Fees
Under the Equal Access to Justice Act that tracks the
hours worked by his attorney, Timothy J. Vrana, on this
matter. [Dkt. 22-2.] Additionally, Plaintiff makes a
representation of the reasonable rate of computation, as
required by the EAJA. [Dkt. 23 at 2-4.] 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.
Although
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.
Here,
Plaintiff asserts that due to the increase in the cost of
living since March 1996, the Plaintiff is entitled to
“an enhanced fee in this case[.]”[1] [Dkt. 23 at
3.] Plaintiff purports an updated hourly rate of
$193.05; such hourly rate was calculated by using the Midwest
Consumer Price Index (CPI-U) from November 2018 totaling
234.292, subtracting the CPI-U in effect in March 1996 of
151.700, and dividing the result of 82.592 by 151.700 to
reach a 54.44% increase. [Dkt. 23 at 3.] At ¶
54.44% increase, Plaintiff asserts $68.05 should be added to
the March 1996 hourly rate to attain the enhanced rate of
$193.05. [Dkt. 23 at 3.] In further support,
Plaintiff's counsel attached affidavits from
practitioners handling Social Security disability claims
attesting to previously award EAJA fees as well as rates for
similar work in the legal community. [Dkt. 23-1;
Dkt. 23-2.] 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).
Next,
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. Vrana asserted
he worked a total of 16.30 hours on this case and reported
legal assistant time of .50 hours. [Dkt. 22-2.] 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.
Additionally,
Plaintiff requested a minimal fee award for services
performed by a legal assistant. [Dkt. 22-2] 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 .50 hours
were expended by a legal assistant in this case at the rate
of $100.00 per hour. [Dkt. 23] The Court finds the
hours for the work performed as well as the hourly rate for
the legal assistant are reasonable. See, e.g.,Chorak v. Astrue, ...