Parker v. Commissioner of Social Security

Filing 34

OPINION AND ORDER: GRANTS 31 MOTION for Attorney Fees Plaintiff's Motion for Attorney's Fees under the Equal Access to Justice Act by Plaintiff Pier A Parker and ORDERS that Plaintiff is awarded attorney fees in the total amount of $12,885.88 in fees pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412. Signed by Magistrate Judge John E Martin on 4/20/2017. (lhc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
PEIR A. PARKER,
Plaintiff,
v.
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
Defendant.

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CAUSE NO.: 2:15-CV-316-JEM

OPINION AND ORDER
This matter is before the Court on a Plaintiff’s Motion for Attorney’s Fees Under the Equal
Access to Justice Act [DE 31], filed by Plaintiff on November 17, 2016.
I.

Procedural Background
On August 15, 2016, Plaintiff filed a Complaint with this Court seeking review of the

Commissioner’s decision denying her claim for disability insurance and supplemental security
income benefits. On February 11, 2016, Plaintiff filed an opening brief outlining her arguments for
remand. On August 22, 2016, the Court issued an Opinion and Order remanding this matter for
further proceedings and judgment thereon was entered. Under Rule 4(a)(1)(B) of the Federal Rules
of Appellate Procedure, the parties had 60 days in which to file an appeal. Neither party filed an
appeal.
On November 17, 2016, Plaintiff filed the instant Motion for Attorney’s Fees under the
Equal Access to Justice Act (“EAJA”). The Commissioner filed a response on December 1, 2016,
and on December 6, 2016, Plaintiff field a reply, including a supplemental request for fees incurred
in drafting the reply.
In the instant Motion, Plaintiff attorneys’ fees for 85.7 hours of work at a rate of $190.20 per
hour, and 1.7 hours of legal staff fees at $95.00 per hour, for a total of $16,461.84 The

Commissioner objects, arguing that Plaintiff failed to justify the rate requested and failed to show
that certain billed hours were reasonably expended.
II.

Analysis
The Equal Access to Justice Act provides that a court shall award attorney fees to a

“prevailing party” in a civil action against the United States that is submitted within thirty days of
final judgment “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); see United
States v. Hallmark Const. Co., 200 F.3d 1076, 1078-79 (7th Cir. 2000) (setting forth the elements
of § 2412(d)(1)). Pursuant to 28 U.S.C. § 2412(d)(1)(B), a fee application must be filed within thirty
days of a court’s final judgment and must satisfy the following requirements: (1) a showing that the
applicant is a “prevailing party;” (2) a showing that the applicant is “eligible to receive an award;”
(3) a showing of “the amount sought, including an itemized statement from any attorney or expert
witness representing or appearing on behalf of the party stating the actual time expended and the rate
at which fees and other expenses were computed;” and (4) an “alleg[ation] that the position of the
[Commissioner] was not substantially justified.” 28 U.S.C. § 2412(d)(1)(B); see also Scarborough
v. Principi, 541 U.S. 401, 405 (2004) ; Hallmark Constr., 200 F.3d at 1078-79.
By obtaining a remand, Plaintiff is considered a “prevailing party.” Bassett v. Astrue, 641
F.3d 857, 859 (7th Cir. 2011). Further, there is no dispute that Plaintiff’s net worth does not exceed
two million dollars. See 28 U.S.C. § 2412(d)(2)(B). The Commissioner does not argue that her
position was substantially justified. See 28 U.S.C. § 2412(d)(1)(B). The Commissioner’s sole
objection is to the amount of fees requested. Therefore, the only dispute is whether Plaintiff has met
her burden of proving that both the hourly rate requested and the number of hours claimed are

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reasonable.
A.

Hourly Rate

Plaintiff requests payment for 85.7 attorney hours at $190.20 per hour and 1.7 hours of legal
assistant time at $95.00 per hour. Plaintiff includes affidavits of attorneys who practice in similar
areas of law and charge between $250 and $550 per hour, and explains that the statutory EAJA rate
increased by inflation amounts to $190.20, the amount he is requesting.
The EAJA provides that an award of attorney’s fees “shall be based upon prevailing market
rates for the kind and quality of the services furnished, except that . . . attorney fees shall not be
awarded in excess of $125 per hour unless the court determines that an increase in the cost of living
or a special factor . . . justifies a higher fee.” 28 U.S.C. § 2412(d)(2)(A)(ii). The Seventh Circuit
Court of Appeals has interpreted this language to mean that an attorney is not “automatic[ally]
entitl[ed] to fee enhancements” or adjustments for inflation. Sprinkle v. Colvin, 777 F.3d 421, 428
(7th Cir. 2015). Rather, the EAJA’s language regarding the cost of living “reflects an assumption
that general measures like the [consumer price index] will provide a reasonably accurate measure
of the need for an inflation adjustment in most cases.” Id. For example, a plaintiff may show the
effect of inflation on her attorney’s abilities to provide adequate legal services by submitting
“evidence of his typical hourly rate, how [her] operating costs have been affected by inflation, what
competent lawyers in the relevant geographic area charge, or that no qualified attorney would
provide representation in comparable cases at the statutory rate.” Walton v. Colvin, No. 1:12CV-688, 2013 WL 1438103, at *4 (S.D. Ind. Apr. 9, 2013). The decision to set an hourly rate at
the national or regional prevailing rate is left to the discretion of the district court. Sprinkle, 777
F.3d at 428, n2.

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The Commissioner argues that the Court should apply a cost of living value for the midwest
urban area to obtain a value of $184.00 for January 2016, rather than the $190.20 requested, which
reflects the national average rate of inflation. Plaintiff points out that the Commissioner does not
cite any cases from the Northern District of Indiana that apply the regional CPI, and argues that its
proposed rate is appropriate. The Court concludes that the affidavits provided by Plaintiff’s
attorney, which the Commissioner does not challenge, “are more than sufficient evidence” that the
hourly rate he requests 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. Accordingly, the Court will
not reduce Plaintiff’s requested hourly rate.
B.

Reasonableness of Hours Expended

The Commissioner also argues that the number of hours billed, 85.7 hours of attorney time,
are not reasonable. The Commissioner argues that the case was routine, that the 31.7 hours reading
the record and doing the research before beginning to draft was excessive, and that the 12 hours
reviewing and editing the brief are not chargeable. The Commissioner requests that the Court
reduce the 81.8 hours spent on briefing by 20 hours to bring the hours within the high end of fee
awards in the Seventh Circuit, particularly given the extensive experience of the lead attorney.
Plaintiff argues that there are over 2000 pages of medical records in this case, longer than
most administrative records in similar cases. In addition, she points out that the law firm did not
represent Plaintiff at previous stages of the case, so review of the record was required before briefing
began. She also argues that the detailed and lengthy opening brief included many citations to the
record, and that it would have taken much longer had the senior attorney not had as much experience
as he does.

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A court should exclude from the “fee calculation hours that were not ‘reasonably
expended.’” Hensley v. Ekerhart, 461 U.S. 424, 434 (1983) (quoting S. Rep. No. 94-1011, p. 6
(1976)); accord Tchemkou v. Mukasey, 517 F.3d 506, 510 (7th Cir. 2008). The burden remains with
Plaintiff to prove that the hours were “reasonably expended.” Hensley, 461 U.S. at 437.
Additionally, “‘[h]ours that are not properly billed to one’s client are also not properly billed to
one’s adversary pursuant to statutory authority.’” Id. at 434 (quoting Copeland v. Marshall, 641
F.2d 880, 891 (D.C. Cir. 1980)) (emphasis in original). Accordingly, a party requesting attorney’s
fees should make a good-faith effort to exclude hours that are “excessive, redundant, or otherwise
unnecessary.” Id. at 437.
In this case, although the record was longer than many others, the case itself was not
markedly more complicated, and nothing about the case indicates that it was so unusual as to require
more than 30 hours of reviewing the record before drafting the brief, in addition to more than 30
hours drafting and editing the opening brief. This amount of time is excessive, and does not appear
in line with what an attorney would properly bill a client for similar work. Accordingly, the Court
will reduce the time spent on reviewing the record and preparing the opening brief by 20 hours, as
requested by the Commissioner, to bring the attorney time spent to the high end of the range of
typical fee awards in the Seventh Circuit. See Copeland v. Astrue, No. 2:11-CV-363, 2012 WL
4959482, at *2 (N.D. Ind. Oct. 17, 2012) (explaining that 40 to 60 hours is the standard range of
attorney hours for Social Security litigation in the Seventh Circuit). Accordingly, the Court finds
that it is reasonable to grant Plaintiff’s fee request as to 65.7 attorney hours and 1.7 legal assistant
hours.

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C.

Supplemental Request
Plaintiff’s attorney represents that he spent 1.2 hours drafting the reply brief. At the

requested hourly rate of $190.20, this amounts to a supplemental fee request of $228.24.
Accordingly, the supplemental request will be incorporated into Plaintiff’s EAJA award.
III.

Conclusion
For the foregoing reasons, the Court hereby GRANTS in part Plaintiff’s Motion for

Attorney’s Fees Under the Equal Access to Justice Act [DE 31] and the supplemental fee request
in her reply [DE 33] and ORDERS that Plaintiff is awarded attorney fees in the total amount
of $12,885.88 in fees pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412. The award shall
fully and completely satisfy any and all claims for fees, costs, and/or expenses that may have been
payable to Plaintiff in this matter pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412(d).
Any fees paid belong to Plaintiff and not her attorney and can be offset to satisfy a
pre-existing debt that Plaintiff owes the United States. Astrue v. Ratliff, 560 U.S. 586 (2010). If the
Commissioner can verify that Plaintiff does not owe any pre-existing debt subject to the offset, the
Commissioner will direct that the award be made payable to Plaintiff's attorney pursuant to the
EAJA assignment duly signed by Plaintiff and her attorney.
SO ORDERED this 20th day of April, 2017.
s/
John
E.
Martin
MAGISTRATE JUDGE JOHN E. MARTIN
UNITED STATES DISTRICT COURT
cc:

All counsel of record

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