Stage v. Commissioner of Social Security
OPINION AND ORDER: GRANTING 33 Motion for Attorney Fees. Plaintiff is AWARDED attorney fees and costs in the amount of $33,265.35. Signed by Judge Joseph S Van Bokkelen on 3/16/17. (jld)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
DEBBIE A. STAGE o/b/o,
BRIAN C. McCARTY (DECEASED)
CAROLYN W. COLVIN,
Acting Commissioner of the
Social Security Administration
CAUSE NO. 2:13-CV-414-JVB-JEM
OPINION AND ORDER
Plaintiff Debbie Stage moves the Court for attorneys’ fees pursuant to the Equal Access
to Justice Act (EAJA), 28 U.S.C. § 2412. For the reasons stated below, the Court FINDS
Plaintiff’s fee application presumptively reasonable and, accordingly, ACCEPTS it in its
entirety; GRANTS Plaintiff’s Motion for Attorney’s Fees (Docket No. 33); and AWARDS
Overview of the Case
Plaintiff filed an application for Supplemental Security Income, Disability Insurance
Benefits, and Widow’s Insurance Benefits. Her application was denied, both initially and upon
reconsideration. She then proceeded to a hearing before an Administrative Law Judge (ALJ),
who found she was not disabled. Thereafter, the Appeals Council denied Plaintiff’s request to
review the ALJ’s decision, thereby solidifying the denial into final agency action reviewable by
the courts under 42 U.S.C. § 405(g).
Plaintiff next appealed the denial to district court, where the Commissioner’s denial was
affirmed. See Stage v. Colvin, 2015 WL 1402149 (2015). Plaintiff appealed to the Seventh
Circuit, which vacated the judgment of the district court and remanded the case back to the
Social Security Administration. See Stage v. Colvin, 812 F.3d 1121 (2016). The Seventh Circuit
instructed the ALJ to obtain medical testimony regarding Plaintiff’s hip replacement and to give
more reasoned assessments of Plaintiff’s credibility, residual functional capacity, and the proper
weight to be afforded to the opinion of Plaintiff’s treating physician. See Stage, 812 F.3d at
Having uncontestedly assumed the classification of a “prevailing party,” Plaintiff now
seeks an award of attorneys’ fees for litigation before the district and appellate courts under the
Equal Access to Justice Act (EAJA). 28 U.S.C. § 2412.
The general “American” rule requires each litigant to pay his own attorney’s fees and
expenses. See Hensley v. Eckerhart, 461 U.S. 424, 429. The Equal Access to Justice Act (EAJA),
however, reverses this general approach to fees when certain qualifications are met. The EAJA
entitles a civil litigant prevailing against the United States to attorneys’ fees “unless the court
finds that the position of the United States was substantially justified.” 28 U.S.C.
§ 2412(d)(1)(A). A party must meet several conditions to be eligible for fees under the EAJA.
Comm’r, I.N.S. v. Jean, 496 U.S. 154, 158–61 (1990).1 Once he meets these conditions, however,
it is the task of the District Court to determine what fees are reasonable. Id. at 161.
These conditions, while not at-play here because Plaintiff’s eligibility for fees is not disputed, are as
follows: (1) the claimant must be a “prevailing party, (2) the Government’s position must be not “substantially
justified,” (3) no “special circumstances” may make an award unjust, and (4) any fee application must be submitted
to the court within 30 days of final judgment in the action and must supported by an itemized statement. Jean, 496
There exists no precise rule or formula for determining what fees are reasonable.
Hensley, 461 U.S. at 436. A reasonable fee is a fee which is sufficient to induce a capable
attorney to undertake the representation of a meritorious case. See Perdue v. Kenny, 559 U.S.
542, 552 (“A reasonable attorney’s fee is one that is adequate to attract competent counsel, but
that does not produce windfalls to attorneys.”) (quoting Blum v. Stenson, 465 U.S. 886, 897
(1984)). A district court hearing an EAJA claim may accept the Plaintiff’s fee application, may
attempt to identify specific hours that should be eliminated, or may simply reduce the award to
account for limited success in the underlying litigation. See id. Such a determination is an
equitable judgment in which the court must necessarily exercise its discretion. Id.
The absence of a precise formula for calculating reasonable fees does not, however, grant
a district court boundless discretion. See Montanez v. Simon, 755 F.3d 547, 553 (7th Cir. 2014).
A district court must provide “a concise but clear explanation of its reasons for the fee award.”
Hensley, 461 U.S. at 437; see also Montanez, 755 F.3d at 553 (emphasizing that a district court
“must apply the correct [legal] standard” and “bears the responsibility of justifying its
conclusions”) (quoting Fox v. Vice, 563 U.S. 826, 838 (2011) and Sottoriva v. Claps, 617 F.3d
971, 975 (7th Cir. 2010)). A district court must also provide a “reasonably specific explanation
for all aspects of a fee determination.” Perdue, 559 U.S. at 559. This explanation may be
“concise,” but must remain an “explanation,” i.e., “a rendering of reasons in support of a
judgment”; not a conclusory statement. Sottoriva, 617 F.3d at 976.
The most useful starting point for determining the amount of a reasonable fee is the
number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate.
U.S. at 158. Because the Plaintiff’s eligibility for fees is not contested, the Court will only discuss the
reasonableness of the fees to be awarded.
Hensley, 461 U.S. at 433.2 This is referred to as the lodestar. Perdue, 559 U.S. at 546. “[T]he
lodestar figure includes most, if not all, of the relevant factors constituting a ‘reasonable’
attorney’s fee.” Id. at 553 (quoting Pennsylvania v. Delaware Valley Citizens’ Council for Clean
Air, 478 U.S. 546, 566 (1986)). As such, the lodestar method yields a fee which is presumptively
reasonable. See id. This presumption is strong. City of Burlington v. Dague, 505 U.S. 557, 562
Moreover, the lodestar amount should not be adjusted on the basis of a factor subsumed
in the lodestar calculation. See Perdue, 559 U.S. at 546 (“[F]actors subsumed in the lodestar
calculation cannot be used as a ground for increasing an award above the lodestar”).3 For
example, the novelty and complexity of a case may not be used to enhance an award because,
presumably, these factors are fully reflected in the number of billable hours recorded by counsel.
Id. at 553. Similarly, the quality of an attorney’s performance should not be used to adjust the
lodestar because such considerations are normally reflected in the reasonable hourly rate. Id.
The Hensley court recognized one method for determining reasonable fees explained by the Fifth Circuit in
Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974). Hensley, 461 U.S. at 434 n.9. Johnson laid
out twelve factors which a district court was supposed to consider when assessing the reasonableness of any fee
award: The factors identified in Johnson are: (1) the time and labor required by the case; (2) the novelty and
difficulty of the questions; (3) the skill requisite to perform the legal service properly; (4) the preclusion of other
employment by the attorney due to acceptance of the case; (5) the customary fee for similar work in the community;
(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. Johnson, 488 F.2d at 717–19
These factors, however, suffered from much the same problems as any multi-factor balancing test endures:
namely, they provide little actual guidance to district courts while yielding unpredictable and, at times, arbitrary
results. See Perdue, 559 U.S. at 551 (criticizing specifically the twelve factor Johnson method of determining the
reasonableness of fees). See also Lexmark Intern., Inc. v. Static Control Components, Inc., 134 S.Ct. 1377, 1392
(2014) (commenting generally on open-ended balancing tests).
The Perdue court spoke only of enhancements of an initial lodestar calculation, but this Court sees no
reason the principle—that a lodestar calculation may not be increased based on a factor subsumed in the initial
calculation—should not also operate in the inverse. If any given consideration is necessarily incorporated into the
initial calculation of the lodestar, adjusting the calculation again thereafter (upward or downward) based on the same
consideration would simply serve to double-count its effect.
A request for attorney’s fees should not, however, result in a second major litigation.
Hensely, 461 U.S. at 437. Where the parties are unable to reach a settlement regarding fees, the
fee applicant bears the burden of establishing entitlement to an award and documenting the
appropriate hours expended along with hourly rates. Id. The applicant should exercise billing
judgment with respect to hours worked and should maintain billing time records in a manner that
will enable a reviewing court to identify distinct claims. Id. The fee applicant must submit
appropriate documentation to meet “the burden of establishing entitlement to an award.”
Hensley, 461 U.S. at 437. “But trial courts need not, and indeed should not, become greeneyeshade accountants. The essential goal in fees (to either party) is to do rough justice, not to
achieve auditing perfection.” Fox v. Vice, 563 U.S. 826, 838 (2011).
Thus, while the fee-applicant bears the burden of establishing entitlement to an award and
of adequately documenting the appropriate hours expended and their corresponding rates, the
government bears the burden of overcoming the strong presumption of reasonableness held by
the lodestar. See Hensley, 461 U.S. at 437; Dague, 505 U.S. at 562.
The Commissioner has conceded (1) Plaintiff’s eligibility for fees in principal and (2)
Plaintiff’s hourly rates. She contends only the number of hours spent by Plaintiff’s counsel on
this case are unreasonable. (Def. Br. at 3). As a result, the Court accepts Plaintiff’s rate of
$190.38 per hour for April 2014, the month in which the majority of legal work was performed
for the District Court litigation. (P’s. Br. at 4). The Court also accepts Plaintiff’s rate of $190.88
for May 2015, the month in which the majority of legal work was performed for the Seventh
The Commissioner has not specifically disputed any particular billing entry. Rather, she
asserts Plaintiff’s counsel was generally inefficient with the time spent drafting the initial District
Court brief and the appellate briefs. Nowhere in the Commissioner’s brief does she identify any
particular unreasonable billing entry. The closest she comes to explaining why Plaintiff’s time
entries are generally overstated is an assertion of counsel’s experience in the field (a factor which
would itself seem more relevant to counsel’s hourly rate than the number of hours he billed).4
The only citation to authority provided in her section titled “The Fees Sought By Plaintiff Are
Not Reasonable,” other than a general statement of law from Hensley, is to an unreported district
court opinion from another circuit, used to support the proposition that Plaintiff’s counsel knows
how to litigate Social Security cases. Compare (Def.’s Br. at 4) (citing Jackson v. Astrue, 2011
WL 6649444 (E.D. Mich., Dec. 21, 2011), with Perdue v. Kenny, 559 U.S. 542, 553 (“We have
also held that the quality of an attorney’s performance generally should not be used to adjust the
lodestar ‘[b]ecause considerations concerning the quality of a prevailing party’s counsel’s
representation normally are reflected in the reasonable hourly rate.’”)5 (quoting Pennsylvania v.
Delaware Valley Citizens’ Council for Clean Air, 478 U.S. 546, 566 (1986)). The Court fails to
see how this is intended to overcome the strong presumption of reasonableness held by the
lodestar—or what purpose it is intended to serve more generally.
See Perdue, 559 U.S. at 553 (“We have thus held that the novelty and complexity of a case generally may
not be used as a ground for an enhancement because these factors ‘presumably [are] fully reflected in the number of
billable hours recorded by counsel.’ We have also held that the quality of an attorney’s performance generally
should not be used to adjust the lodestar ‘[b]ecause considerations concerning the quality of a prevailing party’s
counsel’s representation normally are reflected in the reasonable hourly rate.’”) (citations omitted) (quoting
Delaware Valley Citizens’ Council for Clean Air, 478 U.S. 546, 566 (1986)).
The facts in Perdue dealt with an award of fees and enhancements arising from a violation of constitutional
civil rights, which is potentially distinguishable from the case at-bar. The Court has also stated, however, that the
case law construing what constitutes a “reasonable” fee applies uniformly to all federal fee-shifting statutes. See City
of Burlington v. Dague, 505 U.S. 557, 562 (1992).
The Commissioner dedicates this entire subsection to ensuring the Court accurately read
Plaintiff’s billing entries (see, e.g., Def.’s Br. at 4 (“Of the 140 hours spent briefing this case
before this Court and the court of appeals, [Plaintiff’s counsel] expended over 70 hours on the
appellate brief.”)), but at no point does she explain why any of these time expenditures were
The Court is not requiring the Commissioner to dispute individual time entries on the
itemized statement. Nor need she “plead with particularity” to challenge a fee application. The
goal of fee shifting statutes, after all, is to do “rough justice.” The litigants, like the Court, need
not necessarily become “green eyeshade accountants” scrutinizing the billing itemization with
“auditing perfection.” At the same time, however, the party opposing the fee application must
provide more than a mere allegation of unreasonableness. She must, at the very least, explain
why opposing counsel’s itemized statement includes more time than necessary—an argument
regarding why an attorney as experienced as Plaintiff’s should reasonably have taken less time
would have sufficed.
But this she has not done.
The Commissioner’s brief begs the Court not to saddle the taxpayer with the cost of
unnecessary litigation. But it is this very kind of agency action which the EAJA is intended to
curtail. The operation of the EAJA attempts to correct the problem of moral hazard endemic to a
system which puts the interests of the state—in the form of budget concerns—against the legal
rights of an individual. When facing a factual situation where the law demands a result
disadvantageous to a government decisionmaker inferior to Congress, she may be tempted to
issue a determination contrary to law in hopes that the error goes unnoticed and unchallenged.
These determinations—like here—are identifiable by their lack of “substantial justification.” The
Commissioner would then, in her official capacity, receive a double-benefit—a claim is lifted
from her docket while retaining the same budget allocation she would have had regardless, all
the while evading the budget loss demanded by law. The EAJA attempts to correct such behavior
by penalizing the improper choice while simultaneously removing the possibility of the benefit.
This award is not—at its core—intended by Congress to unduly benefit the Plaintiff at the
cost of the taxpayer. It is to penalize the “substantially [un]justified position” of the Social
Security Administration. The Commissioner conceded—in an attempt to rescue her current
position—that her prior positions were unjustified. Yet her argument amounts to an invitation for
the Court to scour Plaintiff’s time sheet in search of something worth striking. The Court
declines the invitation. She provides no explanation—no rendering of reasons in support of her
desired outcome—only an assertion that Plaintiff’s counsel knows the law.
With that, at least, the Court agrees.
The Court FINDS the lodestar figure presumptively reasonable and ACCEPTS Plaintiff’s
fee application in its entirety. Plaintiff’s Motion for Attorney’s Fees is GRANTED. Plaintiff is
AWARDED fees and costs in the amount of $33,265.35. This award consists of:
65.1 attorney hours and 0.5 legal assistant hours for District Court litigation at
$190.38/hour and $95.00/hour, respectively ($12,393.73 + $47.50 = $12,441.23);
105.2 attorney hours and 2.0 legal assistant hours for Seventh Circuit appeal at
$190.88/hour and $95.00/hour, respectively ($20,080.57 + $190.00 =
2.9 attorney hours for Plaintiff’s Reply at $190.88 ($553.55).
SO ORDERED on March 16, 2017.
s/ Joseph S. Van Bokkelen
JOSEPH S. VAN BOKKELEN
UNITED STATES DISTRICT JUDGE
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