United States District Court, N.D. Indiana, Fort Wayne Division
RAMONA D. HAWKINS, Plaintiff,
ANDREW M. SAUL, Commissioner of the Social Security Administration, Defendant.
OPINION AND ORDER
P. KOLAR MAGISTRATE JUDGE
matter is before the Court on (1) a Motion of Award of
Attorney's Fees Pursuant to the Equal Access to Justice
Act 28 U.S.C. Section 2412 [DE 29] and (2) a Supplemental
Motion of Award of Attorney Fees Pursuant to the Equal Access
to Justice Act FEES28 U.S.C. Section 2412 [DE 36], filed by
Plaintiff Ramona D. Hawkins.
April 6, 2018, Plaintiff filed a Complaint seeking judicial
review of the Commissioner's decision denying her
disability insurance benefits. On October 2, 2018, Plaintiff
filed an opening brief. On December 21, 2018, the
Commissioner filed a response, and on January 4, 2019,
Plaintiff filed a reply. On April 4, 2019, the Court granted
Plaintiff's request for remand.
Motion of Award of Attorney's Fees, Plaintiff seeks fees
under the Equal Access to Justice Act (“EAJA”) in
the amount of $24, 522.00 for 122 hours of attorney work at
an hourly rate of $201.00. On May 28, 2019, the Commissioner
filed a response brief in opposition to Plaintiff's fee
request, opposing the number of hours as unreasonable and
asking the Court to reduce the request to 60 hours. Plaintiff
filed a reply on June 14, 2019, along with a Supplemental
Motion for EAJA Fees in the amount of $5, 487.30 for 27.30
hours spent drafting the reply brief in support of the
original motion for EAJA fees. The Commissioner did not file
a response to the supplemental motion, and the time to do so
has passed. In total, the fee amount requested by Plaintiff
is $30, 009.30.
prevailing party in a civil action against the United States
is entitled to attorney fees unless the Court finds that the
position of the United States was substantially justified or
that special circumstances make an award unjust. 28 U.S.C.
§ 2412(d)(1)(A). The fee applicant bears the burden of
establishing that she is entitled to the reward, documenting
the hours and hourly rates, and demonstrating that the
requested hours are reasonable. Hensley v.
Eckerhart, 461 U.S. 424, 437 (1983). The fee applicant
must further make a good faith effort to exclude hours that
are excessive, redundant, or otherwise unnecessary.
Id. at 434 (“‘Hours that are not
properly billed to one's client also are not
properly billed to one's adversary pursuant to
statutory authority.'” (quoting Copeland v.
Marshall, 641 F.2d 880, 891 (D.C. Cir. 1980) (en
banc))); see also Tchemkou v. Mukasey, 517 F.3d 506,
510 (7th Cir. 2008) (“When calculating an EAJA award,
we must exclude hours that were not reasonably expended and
we may reduce the amount of the award accordingly.”
(internal quotation marks omitted) (quoting Hensley,
461 U.S. at 434) (citing 28 U.S.C. § 2412(d)(1)(C))).
Determining the amount of the fee award is a matter of
discretion for the Court, due to its “superior
understanding of the litigation and the desirability of
avoiding frequent appellate review of what essentially are
factual matters.” Hensley, 461 U.S. at 437.
The Court considers a number of factors when making this
determination, including the results obtained, the complexity
of the case, the staffing particulars, and the quality of
outcome for the requesting party. Hensley, 461 U.S.
at 434-37; Tchemkou, 517 F.3d at 511.
memorandum accompanying the Motion of Award of Attorney's
Fees, Plaintiff sets out her calculation for arriving at a
rate of $201.00 per hour. The memorandum does not present
arguments justifying the number of attorney hours for which
Plaintiff requests compensation. Rather, Plaintiff only
attempts to justify the number of hours in her reply, in
order to refute the arguments set forth by the Commissioner
in his response.
Commissioner does not oppose the hourly rate asserted by
Plaintiff. However, the Commissioner opposes the number of
hours sought by Plaintiff in this matter on two grounds.
First, the Commissioner argues that the 122 hours of attorney
work sought are excessive. (Resp. 2, ECF No. 32). The
Commissioner notes that, per a review of relevant granted
EAJA petitions in cases not involving appellate-level work,
the highest total hours awarded for a case in this district
was 89.85 hours in Bishop v. Berryhill, 2018 WL
5129484, at *3 (Oct. 22, 2018), litigated by the same
plaintiff's counsel as the instant case, with the next
highest number of hours at 74.7 hours in Verlee v.
Colvin, No. 1:12-CV-45, 2013 WL 6063243, at *10 (N.D.
Ind. Nov. 18, 2013). Id. The Commissioner further
notes that the standard range of attorney hours for Social
Security litigation is approximately 40-60 hours in the
Seventh Circuit. Id. at 3 (citing Parker v.
Berryhill, No. 2:15-CV-316-JEM, 2017 WL 1405357, at *3
(N.D. Ind. Apr. 20, 2017)). Moreover, the administrative
record in this case was 578 pages, which the Commissioner
contends is well below the average in both the Northern and
Southern District of Indiana. Id. (noting the
average administrative record in these districts is 802
pages). Accordingly, the Commissioner submits that a
reduction of the EAJA fees to $12, 060.00, representing 60
hours at the requested hourly rate of $201.00 per hour, would
be reasonable in this case. Id.
the Commissioner argues that certain specific hours listed by
Plaintiff should be disallowed. Citing to Hensley,
the Commissioner contends that hours spent working on
arguments upon which Plaintiff did not prevail before the
Court are non-compensable. Id. at 3-4. The
Commissioner states that, per Plaintiff's time log, 14.4
hours were spent briefing Plaintiff's argument regarding
Dr. Bundza. Id. at 4. Further, 4.7 hours were
spent briefing Plaintiff's argument regarding
inconsistent use or misuse of medication and an August 2015
consultative examination. Id. Because the Court
ruled against Plaintiff on both of these issues, the
Commissioner argues that, at a minimum, the total award
should be reduced by $3, 839.10-the number of hours spent on
the unsuccessful arguments (19.1) multiplied by the hourly
rate ($201.00). Id.
reply, Plaintiff acknowledges that the requested EAJA fees
are higher than average but asserts that they are nonetheless
appropriate in this circumstance. In Hensley, the
Supreme Court set out two inquiries to be addressed when
determining whether to adjust a fee award for a plaintiff who
prevailed on only some of her claims for relief: 1) whether
the plaintiff failed to prevail on claims that were unrelated
to the claims on which she succeeded, and 2) whether the
plaintiff achieved a level of success that made the hours
reasonably expended a satisfactory basis for making a fee
award. 461 U.S. at 434. In cases where a plaintiff brings
distinctly different claims for relief, based on different
facts and legal theories, counsel's work on one claim
will be unrelated to his work on another claim. Id.
at 434-35. “Accordingly, work on an unsuccessful claim
cannot be deemed to have been ‘expended in the pursuit
of the ultimate result achieved.'” Id. at
435 (internal citation omitted).
the first inquiry, Plaintiff asserts that in the instant
matter, all of her claims were related. (Reply 1-2, ECF No.
35). Specifically, Plaintiff argues that her claims involved
a common core of facts and were based on related legal
theories. Id. at 2. As to the second inquiry,
Plaintiff argues that she received an excellent result.
Id. Plaintiff notes that, while she was not awarded
benefits, her claim will go back for a third administrative
hearing in which she could be awarded benefits of
approximately $60, 000.00. Id.
goes on to address twelve factors enumerated in
Hensley to be considered when determining whether
the number of hours expended was reasonable:
(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 (internal citation
the first factor, Plaintiff spends several pages recounting
the exact number of hours spent by counsel reviewing the
record, conducting research, and drafting arguments.
(Pl.'s Reply 3-6, ECF No. 35). Acknowledging that the
administrative record was not lengthy, Plaintiff nonetheless
argues that an extensive review of the record was necessary
to identify citations that contradicted the ALJ's
reasoning. Id. at 4. For the second factor,
Plaintiff argues that, while the issues in the case were not
novel, they were nonetheless difficult due to many factual
issues. Id. at 6. Plaintiff asserts that, for the
third factor, Social Security disability cases involve
substantial evidence issues, and that this matter in
particular involved “cherry-picking” by the ALJ
and evidence on Plaintiff's trouble with sleep.
Id. at 7. Addressing the eighth factor, Plaintiff
states that counsel achieved an “excellent”
result for Plaintiff because the Court remanded on three of
four bases presented by Plaintiff. Id. On the ninth
factor, Plaintiff notes that counsel has considerable
experience and qualifications in this area of law.
Id. For the eleventh factor, Plaintiff notes that
counsel has represented her through two hearings and two
federal court cases. Id. at 8. Finally, regarding
the twelfth factor, Plaintiff argues ...