DEHART v. ASTRUE
ORDER granting 26 Motion for Attorney Fees. Signed by Magistrate Judge Mark J. Dinsmore on 12/19/2013. (JD)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
SANDRA K DEHART,
CAROLYN W. COLVIN Acting
Commissioner of the Social Security
ORDER ON MOTION FOR ATTORNEYS’ FEES
This matter is before the Court on Plaintiff Sandra DeHart’s Application for Award of
Attorneys’ Fees Pursuant to the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d)
[Dkt. 26]. Plaintiff seeks an award of attorneys’ fees in the amount of $9700.83 following the
Court’s entry of final judgment [Dkt. 25] remanding this case to the Commissioner of the Social
Security Administration (“Commissioner”) for further proceedings.
The EAJA requires that, in a suit by or against the federal government, the court award to
a prevailing party (other than the United States) her attorneys’ fees and expenses, unless the
court finds that the United States’ position was substantially justified or special circumstances
make an award not just. 28 U.S.C. § 2412(d). Financial means tests also affect eligibility for a
fee award, § 2412(d)(2)(B), but those tests rarely come into play for a person seeking disability
benefits under the Social Security Act. The party’s motion to recover her fees must be timely and
supported by an itemized statement from the party’s attorney “stating the actual time expended
and the rate at which fees and other expenses were computed.” 28 U.S.C. § 2412(d)(1)(B). The
amount of attorneys’ fees must be reasonable and “shall be based upon prevailing market rates
for the kind and quality of the services furnished,” subject to a maximum rate of $125.00 per
hour plus an increase based on the cost of living if a fee higher than $125.00 is justified. 28
U.S.C. § 2412(d)(2)(A).
The Commissioner raises two arguments in opposition to Plaintiff’s fee request: 1) the
Court should exclude some of the hours Plaintiff’s attorney expended on the case as they were
excessive, not reasonably expended and/or involved non-attorney tasks; and 2) any EAJA fees
awarded by this Court should be paid directly to the Plaintiff and not Plaintiff’s counsel.
When reviewing an EAJA award, the court must exclude hours that were not reasonably
expended. Tchemkou v. Mukasey, 517 F.3d 506, 510 (7th Cir. 2008). Plaintiff’s attorney
provided an itemized statement totaling 52.7 hours of time the attorney expended in this case.
Plaintiff seeks an award at the hourly rate of $182.91 for 33 hours of work performed in 2012
and $186.03 for 19.7 hours performed in 2013, including the cost of living increase.1 The
Commissioner argues that these hours are excessive given the circumstances of the case. Mainly,
the Commissioner argues that the record was not that long at 612 pages and the issues were not
unique or complex. The Commissioner implies that, because the Plaintiff’s attorney’s practice is
almost exclusively limited to representing disability claimants, then the amount of time
Plaintiff’s attorney claims to have expended is unreasonable and excessive. However, Plaintiff’s
counsel only represented Plaintiff since the time of appeal to the District Court and therefore had
The Commissioner does not object to Plaintiff’s request for a cost of living increase. After reviewing the exhibits
Plaintiff attached in this matter, the Court finds that a cost of living increase is justified.
to familiarize himself with the record. In light of the circumstances of this case, the Court finds
the amount of time claimed by Plaintiff’s counsel to be reasonable, which is consistent with other
courts that have found similar amounts of time to be reasonable. See Snider v. Astrue, No. 1:08CV-53, 2009 WL 1766925, *4-5 (N.D. Ind. June 23, 2009); Sayles v. Barnhart, No. 00 C 7200,
2002 WL 989455,*3 (N.D. Ill. May 14, 2002); Schutt v. Massanari, N. 00 C 1370, 2001 WL
1155253, *3 (N.D. Ill. Sept. 28, 2001).
The Commissioner also argues that some of the time entries should be stricken as clerical
or administrative in nature. The Commissioner points to an entry regarding signing an agreement
for legal services and other forms. However, this entry indicates that counsel “met with [the]
client, signed agreement of legal services and other forms.” [Dkt. 26-1, emphasis added.]
Counsel logged .5 hours for this entry. The Court finds that meeting with the client and working
with the client to help the client understand the legal forms were necessary reasonable
expenditures of counsel’s time. The Commissioner also points to the entry where counsel
prepares a motion for extension of time. Specifically, this entry indicates that counsel “reviewed
[the] briefing schedule, prepared and filed motion for enlargement of time to file brief.” Counsel
logged .2 hours for this entry. The Court finds that it was not unreasonable for counsel for
Plaintiff to expend .2 hours in this manner. Accordingly, the Court finds the itemization in
Plaintiff’s request for fees to be sufficient.
Next, the Commissioner argues that this Court should award EAJA fees to the Plaintiff
and not her counsel. The Supreme Court has held that an EAJA award is payable to the litigant
and is therefore subject to a Government offset to satisfy any pre-existing debt that the litigant
owes to the United States. Astrue v. Ratliff, 130 S.Ct. 2521, 2524 (2010). However, the Supreme
Court went on to note that payments can be made directly to counsel in instances where the
plaintiff does not owe a debt to the government and has assigned his or her right to receive the
fees to the attorney. Id. at 2529. Plaintiff has filed a copy of such an assignment executed by
Plaintiff in favor of counsel. [Dkt. 26-4.] Therefore, the Court orders that the Commissioner pay
counsel for Plaintiff directly, less any debt owed by Plaintiff to the federal government.
For the foregoing reasons, Plaintiff’s motion for an award of attorney’s fees [Dkt. 26]
under the EAJA for the amount of $9700.83 is GRANTED.
Bridget L. O’Ryan
O’RYAN LAW FIRM
Mark J. Dinsmore
United States Magistrate Judge
Southern District of Indiana
Nicholas Thomas Lavella
O’RYAN LAW FIRM
Thomas E. Kieper
UNITED STATES ATTORNEY’S OFFICE
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