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Hawkins v. Saul

United States District Court, N.D. Indiana, Fort Wayne Division

December 12, 2019

ANDREW M. SAUL, Commissioner of the Social Security Administration, Defendant.



         This 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.

         On 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.

         In the 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.

         The 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.

         In a 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.

         The 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).[1] 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.

         Second, 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.[2] 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).[3] Id.

         In her 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).

         Addressing 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.

         Plaintiff 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 omitted).

         As to 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 ...

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