Derry v. Carolyn Colvin

Filing 39

MEMORANDUM Opinion and Order: Plaintiff's motion for attorney fees pursuant to the EAJA [dkt. 30] is granted in part. Plaintiff is awarded $23,653.13 in fees and costs. - Signed by the Honorable Susan E. Cox on 5/31/2019. [For further details see order] Mailed notice (np, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JACQUELYN D.,
Plaintiff,
v.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.

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No. 16-cv-11434
Magistrate Judge Susan E. Cox

MEMORANDUM OPINION AND ORDER
Plaintiff Jacquelyn D.1 now comes before the Court seeking an award of attorney’s fees
pursuant to the Equal Justice Act (“EAJA”), 28 U.S.C. § 2412(d) [dkt. 30]. Defendant Commissioner
of Social Security (“Commissioner”) opposes this motion, in part. For the following reasons, Plaintiff’s
motion is granted in part. Plaintiff’s counsel is awarded $23,653.13 in fees and costs.
I.

Procedural History and Legal Standard
Plaintiff filed her application for disability insurance benefits on May 14, 2013, alleging a

disability onset date of September 30, 2010. The claim was denied initially, and again upon
reconsideration. After an administrative hearing, ALJ Jessica Inouye issued an October 15, 2015
opinion finding Plaintiff not disabled. This Court upheld the ALJ’s decision, and Plaintiff appealed to
the Seventh Circuit, where she was successful in her appeal. Jacqueline D. v. Berryhill, 756 F. App’x 619
(7th Cir. 2019). Plaintiff now seeks $32,520.63 in fees and costs pursuant to the EAJA.
Under the EAJA, a court may award reasonable fees and costs if: (1) the claimant was a
prevailing party; (2) the Commissioner’s position was not substantially justified; (3) there are no special
circumstances that would make an award unjust; and (4) the claimant files a complete and timely

In accordance with Northern District of Illinois Internal Operating Procedure 22, the Court refers to Plaintiff
only by her first name and the first initial of her last name(s). We have also used this same naming convention when
citing to Plaintiff’s Seventh Circuit appeal herein.
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application. 28 U.S.C. § 2412(d)(1)(A)-(B); Stewart v. Astrue, 561 F.3d 679, 683 (7th Cir. 2009).
The Commissioner does not dispute that Plaintiff was the prevailing party, that she filed a
timely application, or that any special circumstances exist that would make an award unjust; the
Commissioner even concedes the issue of substantial justification. At issue here is whether the fee
award Plaintiff seeks is reasonable.
II.

The Reasonableness of Plaintiff’s Proposed Fee Award
a. Hourly Rate
The Commissioner takes issue with two aspects of Plaintiff’s proposed fee award. First, the

Commissioner asserts that Plaintiff’s counsel’s proposed hourly rate of $194.07, which is based on the
national Consumer Price Index (“CPI”) for October 2016 (the last full month before the legal work
began), is too high. According to the Commissioner, the EAJA award should be calculated using the
regional CPI, resulting in an hourly rate of $184.35. The Court agrees.
Under the EAJA, an award of attorney’s fees “shall be based upon the prevailing market rates
for the kind and quality of services furnished, except that…attorney fees shall not be awarded in excess
of $125.00 per hour unless the court determines that an increase in the cost of living…justifies a higher
fee.” 28 U.S.C. § 2412(d)(1)(A)(ii). Congress set the current $125 maximum hourly rate under the
EAJA in 1996, but in more recent years, the Seventh Circuit determined that “given the passage of
time since the establishment of the [$125] hourly rate, a cost-of-living adjustment is warranted.” Trump
v. Colvin, 2015 WL 970111, at *2 (N.D. Ill. Mar. 2, 2015) (citing Tchemkow v. Mukasey, 517 F.3d 506,
512 (7th Cir. 2008)).
The Seventh Circuit has since clarified the appropriate measure for calculating the cost-ofliving adjustment for EAJA petitions. In Sprinkle v. Colvin, 777 F.3d 421 (7th Cir. 2015), the Court
determined that the CPI is sufficient “proof of an increase in the cost of living” and the court “should
generally award the inflation-adjusted rate according to the CPI, using the date on which the legal
services were performed.” Trump, 2015 WL 970111, at *2 (citing Sprinkle, 777 F.3d at 423). However,
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Sprinkle does not create an automatic entitlement to a fee enhancement; in order to justify a higher
rate, “claimants must still produce satisfactory evidence that the rate they request is in line with those
prevailing in the community for similar services by lawyers of comparable skill and experience.”
Sprinkle, 777 F.3d at 428. Moreover, “courts may not award claimants inflation-adjusted rates that are
higher than prevailing market rates.” Trump, 2015 WL 970111, at *3; see also Sprinkle, 777 F.3d at 429
(“to avoid the possibility of a ‘windfall,’ courts may not award an inflation-adjusted rate that is higher
than the prevailing market rate in the community for comparable legal services”).
The Sprinkle Court left it to the court’s discretion whether to use the national or the regional
CPI when calculating the inflation-adjusted hourly rate. 777 F.3d at n.2. (“We…leave to the discretion
of the district courts whether to adopt the national or regional index in specific cases.”). Since then,
district courts in the Seventh Circuit have continued to calculate the enhanced rate using both the
national and regional CPI, and no uniform consensus has been reached on the issue. Compare Vasquez
v. Colvin, 2016 WL 687900, at *2 (N.D. Ill. Feb. 19, 2016), with Fox v. Colvin, 2016 WL 5402751, at *2
(N.D. Ill. Sept. 26, 2016). Here, the Commissioner argues the rate should be based on the regional
CPI, rather than the national CPI as Plaintiff urges.
As other decisions within the Northern District of Illinois recently stated in both Mitchell v.
Berryhill, 2019 WL 764043, at *2 (N.D. Ill. Feb. 21, 2019) and Sammie R. v. Berryhill, 2019 WL 1057355,
at *4 (N.D. Ill. Mar. 6, 2019), the “regional CPI index is the appropriate factor to use when calculating
the inflation-adjusted hourly rate.” (Both cases awarded the regional CPI rate to attorneys from the
same firm as Plaintiff’s counsel in the instant case.) This is so because the hourly rate produced by use
of the regional CPI best approximates the prevailing market rate in the community in which Plaintiff’s
counsel performed their work. Consequently, the Court adopts the Commissioner’s proposed hourly
rate of $184.35 based on the regional CPI.
2. Number of Hours
Second, the Commissioner argues that the 153.8 attorney hours expended here are excessive,
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and takes particular umbrage with the 68.3 hours spent preparing for oral argument before the Seventh
Circuit. Plaintiff, not the Commissioner, bears the burden of proving that her fee request is reasonable.
Hensley v. Eckerhart, 461 U.S. 424, 437 (1983). When assessing fees under the EAJA, the “court should
exclude from the ‘fee calculation hours that were not reasonably expended.’” Ruiz v. Colvin, 2016 WL
2908287, at *3 (N.D. Ind. May 18, 2016) (quoting Hensley, 461 U.S. at 434). To determine whether
counsel’s hours were reasonably expended, the court may consider factors “such as the complexity of
the case, the number and type of issues raised, and the size of the administrative record.” Cummings v.
Berryhill, 2017 WL 926766, at *1 (N.D. Ill. Mar. 8, 2017). Additionally, counsel must exercise billing
judgment, in that “[h]ours that are not properly billed to one’s client also are not properly billed to
one’s adversary…” Hensley, 461 U.S. at 434 (emphasis in original). “Billing judgment consists of
winnowing the hours actually expended down to the hours reasonably expended.” Spegon v. Catholic
Bishop of Chicago, 175 F.3d 544, 552 (7th Cir. 1999) (citation omitted).
Here, the Commissioner makes no argument that the hours expended by Plaintiff’s counsel
outside the 68.3 hours spent preparing for oral argument were unreasonable. Rather, the
Commissioner asks the Court to cap the number of hours for work preparing for oral argument to
“28.5 hours (allowing time for 3 full business days (24 hours) of preparation, plus the 4.5 hours claimed
for attending and presenting argument).” Dkt. 37, p. 6.
“Courts in this district have routinely held that 40 to 60 hours is a reasonable amount of time
for attorneys to spend working on a social security appeal.” Spraggins v. Berryhill, 2018 WL 661553, at
*1 (N.D. Ill. Feb. 1, 2018). Similarly, the “standard range for [total] hours worked on Social Security
litigation in the Seventh Circuit is 40-60 hours.” Bohannon v. Colvin, 2017 WL 192334, at *2 (N.D. Ind.
Jan. 18, 2017). While a Seventh Circuit appeal may be more laborious than the appeal to the district
court, it also may not be; as at least one court has held that “[a]lthough not a perfect comparison,
[appealing a case to the circuit court] effectively amounts to a second appeal and, accordingly, it seems
reasonable to the Court for the amount of fees generated before the [circuit court] to roughly reflect
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the amount of fees before the district court.” Kilinski ex rel. Kilinski v. Astrue, 2012 WL 5353568, at *3
(D. Colo. Oct. 30, 2012).
Regardless, the Commissioner maintains that Plaintiff’s attempt to recover in excess of the
high end of this range solely for oral arguments is unreasonable. The Court agrees. To be clear, a
review of case law in the Seventh Circuit reveals that Plaintiff’s request for 153.8 attorney hours is not
outside the upper-end range of EAJA awards in cases that included an appeal to the Seventh Circuit.
See, e.g., Villano v. Astrue, 2009 WL 1803131, at *4 (N.D. Ind. June 23, 2009) (granting award for
approximately 180 hours); Getch v. Astrue, 2009 WL 89667, at *5 (N.D. Ind. Jan. 12, 2009) (granting
award for 169.2 hours). On the other hand, district courts within the Seventh Circuit have reduced
similarly high attorney fee requests for hours expended on appellate arguments in other contexts. For
example, the Southern District of Indiana found that 60-65 hours for preparing for and presenting
argument before the Seventh Circuit was “significantly excessive” when counsel “was already wellversed on the relevant issues before oral argument” after having prepared the briefs. Cerajeski v. Zoeller,
2016 WL 771977, at *9 (S.D. Ind. Feb. 29, 2016). The court found that “20 hours would have been a
reasonable amount of time” to prepare for and present appellate oral argument, and commensurately
reduced the award. Id. The Cerajeski court cited the Seventh Circuit’s decision in Ustrak v. Fairman, 851
F.2d 983 (7th Cir. 1988). In Ustrak, the Seventh Circuit held that “[a]lmost a week’s work is far too
much for preparing to argue an appeal in a case involving simple facts, a three-day trial, and legal issues
of limited (though not trivial) scope and novelty,” rejected the argument that this time was necessary
because lead counsel was unavailable to argue the case, and reduced the 38 hours of attorney time
requested to 16 hours. Id. at 987. The Northern District of Illinois and the Western District of
Wisconsin have similarly reduced attorney time requested for preparing for and presenting appellate
oral argument, including requests that were measurably smaller than the 68.3 hours Plaintiff seeks for
that task in the instant case. See Shula v. Lawent, 2004 WL 2044279, at *2 (N.D. Ill. Sept. 2, 2004)
(reducing the requested 46.6 hours to 22); Johnson v. Prudential Ins. Co. of Am., 2000 WL 34229755, at
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*1 (W.D. Wis. Sept. 5, 2000) (reducing the requested 40 hours to 20).
A review of the above-enumerated factors and case law supports a reduction of hours here.
While we are mindful of Plaintiff’s argument that certain parts of Plaintiff’s case differ from the runof-the-mill social security case (namely the “relatively unusual issue of the applicability of a Veteran’s
Administration disability rating.” Dkt. 38, p. 4), the Court agrees with the Commissioner that “[i]t
would be unreasonable for attorneys who represented [Plaintiff] at the administrative level, and fully
briefed the case in both district court and appellate court and billed for this time, to then additionally
bill [Plaintiff] for nearly two business weeks of attorney time, well over $13,000, solely to prepare for
a 10-minute oral argument.” Dkt. 37, p. 9. We are wary of creating a windfall by granting such a large
award of hours to three attorneys from the same firm preparing for one of them to give an oral
argument. We are also mindful of Plaintiff’s counsel’s argument that “the collaborative effort of the
‘drafter’ and the ‘speaker’ does not amount to ‘duplication of efforts’.” Dkt. 38, p. 4. However, this
largely is a matter of billing judgment. No client would hesitate to balk at the number of hours spent
on this task. It is perhaps the case that many of these hours should be written off internally as a
teaching moment between members of the firm (particularly here, where the attorney who presented
oral argument also edited the appellate brief), but it does not strike the Court as reasonable to include
them on the bill here. See Hensley, 461 U.S. at 434 (hours not properly billed to one’s client also not
properly billed to one’s adversary); Spegon, 175 F.3d at 552 (“Billing judgment consists of winnowing
the hours actually expended down to the hours reasonably expended.”) (emphasis added).
While the Court agrees with the Cerajeski holding that “20 hours would have been a reasonable
amount of time” to prepare for and present appellate oral argument, we agree that the issue of the
Veteran’s Administration disability rating warrants slightly more time than 20 hours. Here, the
Commissioner suggests a reduction from the 68.3 hours to 28.5 hours (24 hours preparing for oral
argument and 4.5 hours attending oral argument) would be reasonable in this case. This is not outside
the realm of what the Court was inclined to award, so we will adopt the Commissioner’s suggestion
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in this regard.
Plaintiff will be awarded 114 attorney hours at 184.35 per hour (based on the October 2016
Chicago CPI), plus paralegal fees of $1,269 and costs of $1,404.23 (these latter two sums being the
exact amount requested by Plaintiff’s counsel).2 This results in a total EAJA award of $22,248.90 in
attorney and paralegal fees, and $1,404.23 in costs.
III. Conclusion
For the foregoing reasons, Plaintiff’s motion for attorney fees pursuant to the EAJA [dkt. 30]
is granted in part. Plaintiff is awarded $23,653.13 in fees and costs.

ENTERED: 5/31/2019

______________________________
U.S. Magistrate Judge, Susan E. Cox

Although the Commissioner raises no objection to Plaintiff’s paralegal fees, and the Court has not reduced them
here, Plaintiff’s counsel would do well to exercise more billing judgment in this area in the future, as it appears at
least one entry for downloading briefs may be duplicative of attorney time. Compare 9/11/2018 NAS timekeeper
entry (dkt. 35-1, p. 2), with 9/11/2018 SMG timekeeper entry (dkt. 31-4, p. 2).
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