VENTURA v. BERRYHILL

Filing 30

ORDER granting Plaintiff's 28 Motion for Attorney Fees. See Order. Signed by Magistrate Judge Mark J. Dinsmore on 4/11/2019. (SWM)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
JODY V.,

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Plaintiff,
v.
NANCY A. BERRYHILL,
Defendant.

No. 1:17-cv-04015-MJD-WTL

ORDER ON PLAINTIFF’S MOTION FOR ATTORNEY FEES
UNDER THE EQUAL ACCESS TO JUSTICE ACT [DKT. 28]
This matter comes before the Court on Plaintiff’s Motion for Attorney Fees Under the
Equal Access to Justice Act [Dkt. 28]. For the following reasons, the Court GRANTS Plaintiff’s
Motion.
I. Background
On February 27, 2018, Plaintiff filed her initial brief in support of her Complaint for
judicial review to reverse the ALJ’s unfavorable finding and remand for further proceedings.
[Dkt. 18.] On September 17, 2018, the Court reversed the Commissioner’s decision and
remanded Plaintiff’s claim for further proceedings. [Dkt. 26.] Final judgment was entered in
favor of the Plaintiff. [Dkt. 27.] Plaintiff filed a Motion for Attorney Fees Under the Equal
Access to Justice Act with supporting documentation on December 17, 2018, requesting an
EAJA attorney fee award in the amount of $2,959.97. [Dkt. 28; Dkt. 29.] Defendant did not file
a response to Plaintiff’s Motion.
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II. Discussion
Pursuant to the Equal Access to Justice Act (“EAJA”), a “court shall award to a
prevailing party other than the United States fees and other expenses . . . incurred by that party in
any civil action . . . brought by or against the United States.” 28 U.S.C. § 2412(d)(1)(A). In
order to succeed in a Petition for EAJA fees, the movant must, “within thirty days of final
judgment in the action,” file her application (1) showing that she is a “prevailing party,” (2)
providing the Court with an itemized statement that represents the computation of the fees
requested, and (3) alleging that the position taken by the United States was “not substantially
justified.” 28 U.S.C. § 2412(d)(1)(B). Additionally, the Court may, in its discretion, reduce or
deny the award of fees and expenses if the prevailing party “engaged in conduct which unduly
and unreasonably protracted the final resolution of the matter in controversy” during the course
of the proceedings. 28 U.S.C. § 2412(d)(1)(C).
First, the Court must determine whether Plaintiff’s motion for fees was timely filed.
Section 2412(d)(1)(B) of the EAJA states that an application for fees and expenses must be filed
“within thirty days of final judgment in the action.” The Supreme Court has clarified that the
“30-day EAJA clock begins to run after the time to appeal that ‘final judgment’ has expired,”
which in this case is 60 days. Melkonyan v. Sullivan, 501 U.S. 89, 96 (1991). The Court entered
final judgment on September 17, 2018. [Dkt. 27.] Thus, Plaintiff’s December 17, 2018 petition
for attorney fees was timely filed. [Dkt. 28; Dkt. 29.] See 28 U.S.C. § 2412(d)(1)(B); Fed. R.
Civ. P. 6(a)(1)(C).
In her brief in support [Dkt. 29], Plaintiff contends she meets the “prevailing party”
requirement of the EAJA pursuant to the standard set forth by the U.S. Supreme Court in Shalala
v. Schaefer. 509 U.S. 292 (1993). In Shalala, the Supreme Court confirmed that a plaintiff

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whose complaint is remanded to an administrative law judge for further consideration qualifies
as a “prevailing party” under Section 2412(d)(1)(B) of the EAJA. Id. at 300. Because the Court
in this matter remanded Plaintiff’s case to an administrative law judge for such further
consideration, Plaintiff indeed meets the prevailing party requirement of the EAJA.
Next the Commissioner bears the burden of proving that her pre-litigation conduct,
including the ALJ’s decision itself, and her litigation position were substantially justified. See
Stewart v. Astrue, 561 F.3d 679, 683 (7th Cir. 2009). In the matter before the Court, the
Commissioner did not file a Response to Plaintiff’s Motion thereby electing not to carry her
burden of proving that her position was substantially justified. Therefore, Plaintiff meets the
EAJA’s threshold requirement of asserting that the Commissioner’s position in this matter was
not substantially justified.
Finally, Plaintiff asserted the fees requested are reasonable pursuant to the terms of the
EAJA. [Dkt. 29 at 3-7.] As a threshold requirement, 28 U.S.C. § 2412(d)(1)(B) of the EAJA
requires Plaintiff to submit “an itemized statement from any attorney or expert witness
representing or appearing in [sic] behalf of the party stating the actual time expended and the rate
at which fees and other expenses were computed.” Plaintiff attached itemized statements as
Exhibit A and Exhibit B to her Motion for Attorney Fees Under the Equal Access to Justice Act
that tracks the hours worked by her attorneys, J. Frank Hanley, II and Eric Schnaufer, on this
matter. [Dkt. 29-1; Dkt. 29-1.] Additionally, Plaintiff makes a representation of the reasonable
rate of computation, as required by the EAJA. [Dkt. 29 at 3-7.] Thus, Plaintiff has met the
threshold requirement of presenting the Court with both the hours expended by her attorneys on
the matter and the rate used to compute the total fees sought.

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Although Plaintiff has met the burden of presentation regarding the amount of fees
sought, the Court must determine whether such fees are reasonable pursuant to the EAJA. A
reasonable EAJA fee is calculated under the lodestar method by multiplying a reasonable
number of hours expended by a reasonable hourly rate. Astrue v. Ratliff, 560 U.S. 586, 602
(2010). Although the hourly rate is statutorily capped at $125.00 per hour, the language
additionally permits the Court to allow for “an increase in the cost of living” to justify a higher
hourly rate. 28 U.S.C. § 2412(d)(2)(A). In order to prove that such an increase is justified, the
Seventh Circuit held that “an EAJA claimant may rely on a general and readily available
measure of inflation such as the Consumer Price Index, as well as proof that the requested rate
does not exceed the prevailing market rate in the community for similar services by lawyers of
comparable skill and experience.” Sprinkle v. Colvin, 777 F.3d 421, 423 (7th Cir. 2015).
Reliance solely on a readily available measure of inflation is not sufficient, as an inflationadjusted rate might result in a rate higher than the prevailing market rate in the community for
comparable legal services, creating a windfall, which is to be avoided. Id. at 428-29.
Here, Plaintiff referenced the March 1996 Midwest Urban CPI-All Items Index at 151.7,
with an increase in the cost of living for 2017 at 1.515319 (229.874/151.7) and for the First Half
of 2018 at 1.540217 (233.651/151.7). [Dkt. 29 at 3-4; Dkt. 29-3.] To complete the fee
calculations accordingly, the Annual 2017 and First Half of 2018 index totals are multiplied by
the $125.00 per hour statutory cap; as such, for 2017 Plaintiff asserted a rate of $189.41, and for
the First Half of 2018, a rate of $192.53. [Dkt. 29 at 7.] In further support, Plaintiff submitted a
rate survey for Indianapolis – Carmel Indiana for 2008 which illustrated the “lowest quartile
standard hourly rate for an attorney with under two years of experience was $185.” [Dkt. 29 at
5; Dkt. 29-4.] As Mr. Hanley and Mr. Schnaufer have practiced law between twenty and forty

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years, the lowest quartile of the rate survey would reflect hourly rates between $345 and $391.
[Dkt. 29 at 5; Dkt. 29-4.] The Court finds Plaintiff’s requested rates are consistent with the
inflation-adjusted rate, the depth of counsel’s experience, the prevailing market rate in the
community by lawyers of comparable skills and experience, and the rate approved in other
similar disability cases in this district. See, e.g., Rabe v. Astrue, 2011 WL 2899063 (S.D. Ind.
July 15, 2011); Neal v. Colvin, 2013 WL 4479802 (S.D. Ind. Aug. 19, 2013); Little v. Colvin,
2014 WL 30032 (S.D. Ind. Jan. 3, 2014).
Next, the Court must decide whether the number of hours reportedly worked by counsel
appears sufficiently reasonable. The Seventh Circuit commands that an attorney use the same
“billing judgment” with the Court that he or she would implement when presenting a client with
the legal bill. Spegon v. Catholic Bishop of Chi., 175 F.3d 544, 552 (7th Cir. 1999). As
explained by the Supreme Court, “[c]ounsel for the prevailing party should make a good faith
effort to exclude from a fee request hours that are excessive, redundant, or otherwise
unnecessary, just as a lawyer in private practice ethically is obligated to exclude such hours from
his fee submission.” Hensley v. Eckerhart, 461 U.S. 424, 434 (1983). Mr. Hanley asserted 1.80
hours of expended attorney time on this case, of which 1.60 hours were completed in 2017 and
0.20 hours were expended in the First Half of 2018. 1 [Dkt. 29 at 7.] Mr. Schnaufer asserted
13.60 hours of expended attorney time on this case, of which all hours were completed in the

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The Court notes Mr. Hanley’s fee calculations are determined as follows: 1.60 hours at the
Annual 2017 rate of $189.41 to total $303.06 and 0.20 hours at the First Half of 2018 rate of
$192.53 to total $38.51. The sum of Mr. Hanley’s fees for 1.80 hours worked is $341.57 (1.60 X
$189.41 = $303.056 and 0.20 X $192.53 = $38.506. Instead of rounding those two calculations
to the second decimal point as the Court has done, counsel for Plaintiff added them together to
arrive at $341.562, and then rounded that number to $341.56, which is the amount used by
Plaintiff in calculating their total requested fee).
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First Half of 2018. 2 [Dkt. 29 at 7.] The Court has reviewed the itemized time records of services
rendered and finds Plaintiff’s counsel employed proper “billing judgment” with regards to each
attorney’s work on this case. The Court finds that the number of hours worked appears
reasonable.
Finally, the Court is not aware of any “conduct which unduly and unreasonably
protracted the final resolution of the matter in controversy” having taken place on behalf of
Plaintiff or her counsel. Therefore, the Court will not reduce or deny an award of fees or
expenses on such grounds, pursuant to 28 U.S.C. § 2412(d)(1)(C).
III. Conclusion
The Court finds that Plaintiff’s fee request of $2,959.97, the combined total of Mr.
Hanley and Mr. Schnaufer’s hours at the Annual 2017 rate of $189.41 and First Half of 2018 rate
of $192.53, is reasonable. Therefore, based on the foregoing, Plaintiff’s Motion for Attorney
Fees Under the Equal Access to Justice Act [Dkt. 28] is GRANTED. Plaintiff is entitled to her
reasonable attorneys’ fees in the amount of Two Thousand Nine Hundred Fifty-nine Dollars and
Ninety-seven Cents ($2,959.97). Defendant shall pay the EAJA fee directly to Plaintiff, subject
to a statement of federal debt by the Commissioner.
SO ORDERED.

Dated: 11 APR 2019

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The Court notes Mr. Schnaufer’s fee calculations are determined as follows: 13.60 hours at the
First Half of 2018 rate of $192.53 to total $2618.41.
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Distribution:
J. Frank Hanley, II
LAW OFFICES OF J. FRANK HANLEY II, INC.
[e-mail]
Kathryn E. Olivier
UNITED STATES ATTORNEY'S OFFICE (Indianapolis)
[e-mail]
Hannah Danielle Tuber
SOCIAL SECURITY ADMINISTRATION
[e-mail]

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