WILLIAMS v. BERRYHILL

Filing 18

ORDER denying as moot Plaintiff's 15 Motion for Attorney Fees; granting Parties Joint 17 Motion for Attorney Fees. Plaintiff is entitled to reasonable attorney fees, expenses, and costs in the amount of Six Thousand Three Hundred Fourteen Dollars and Eighty-three Cents ($6,314.83). (See Order). Signed by Magistrate Judge Mark J. Dinsmore on 4/15/2019. (MAC)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
CHANEL W.,

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Plaintiff,
v.
NANCY A. BERRYHILL,
Defendant.

No. 1:18-cv-01512-MJD-RLY

ORDER ON MOTION FOR ATTORNEY FEES
[DKTS. 15, 17]
This matter comes before the Court on Plaintiff’s Petition for Attorney Fees Under the
Equal Access to Justice Act [Dkt. 15] and the parties’ Joint Motion to Award EAJA Fees [Dkt.
17]. For the following reasons, the Court DENIES AS MOOT Plaintiff’s motion and GRANTS
the parties’ joint motion.
I. Background
On October 8, 2018, Plaintiff filed her initial brief in Support of Complaint for Review to
reverse the ALJ’s unfavorable finding and remand for further proceedings. [Dkt. 10.] On
November 19, 2018, Defendant filed an Agreed Motion for Reversal with Remand for Further
Administrative Proceedings. [Dkt. 12.] On November 26, 2018, the Court reversed the
Commissioner’s decision and remanded Plaintiff’s claim for further proceedings. [Dkt. 13.]
Final judgment was entered in favor of Plaintiff. [Dkt. 14.] Plaintiff filed a Petition for Attorney

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Fees Under the Equal Access to Justice Act 1 with supporting documentation on December 20,
2018. [Dkt. 15; Dkt. 16.] The parties filed a Joint Motion to Award EAJA Fees on December
20, 2018, indicating they had agreed to an EAJA award of attorney fees and costs in the amount
of $6,314.83. [Dkt. 17.]
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

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Plaintiff’s Petition for Attorney Fees Under the Equal Access to Justice Act [Dkt. 15] is
DENIED AS MOOT.
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final judgment on November 26, 2018. [Dkt. 14.] Thus, Plaintiff’s December 20, 2018 petition
as well as the parties’ joint motion for attorney fees submitted on the same day, were both timely
filed. [Dkt. 15; Dkt. 17.]
In her brief in support [Dkt. 16 at 2], 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
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 agreed to an award of fees, thereby electing not to carry her burden of proving
that her position was substantially justified. [Dkt. 17.] 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. 16 at 3-5.] 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 an itemized statement as
Exhibit A to her Petition for Attorney Fees Under the Equal Access to Justice Act that tracks the

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hours worked by her attorney, Charles D. Hankey, on this matter. [Dkt. 16-1.] Additionally,
Plaintiff makes a representation of the reasonable rate of computation, as required by the EAJA.
[Dkt. 16 at 3-5.] Thus, Plaintiff has met the threshold requirement of presenting the Court with
both the hours expended by her attorney on the matter and the rate used to compute the total fees
sought.
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 asserts that, because the EAJA was passed in 1996 and the Consumer
Price Index-All Items Index at the time was 155.7, the proper calculations bring the 2018 hourly

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rate to $200.00. [Dkt. 16 at 3.] 2 Plaintiff contended the $200.00 hourly rate is “below the
market rate for the same kind and quality of legal services as performed in this case[,]” is
consistent with the inflation-adjusted rate, and is appropriate for the depth of counsel’s
experience as a Social Security practitioner. [Dkt. 16 at 3-4.] Based upon the parties’ joint
motion, the effective agreed-upon hourly rate for attorney time is approximately $189.70 and for
paralegal time is $100.00. 3 The Court finds these 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

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$125.00 x 1.60 result in $200.00 per hour for 2018.
The parties’ Joint Motion to Award EAJA Fees [Dkt. 17] agreed to an award of $5,914.83 for
attorney fees and expenses but did not explicitly break down the hourly rate. Based upon
Plaintiff’s counsel’s asserted attorney hours of 30.60 and paralegal hours of 1.10, the Court
calculates as follows: $5914.83 – (100.00 x 1.10) = $5804.83. The remaining balance of
$5804.83 divided by Plaintiff’s counsel’s expended 30.60 hours establishes an approximate rate
of $189.70.
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his fee submission.” Hensley v. Eckerhart, 461 U.S. 424, 434 (1983). Mr. Hankey asserted he
worked a total of 30.60 hours on this case and reported paralegal time of 1.10 hours. [Dkt. 16-1.]
The Court has reviewed the itemized time records of services rendered and finds Plaintiff’s
counsel employed proper “billing judgment” with regards to his work on this case. The Court
finds that the number of hours worked appears reasonable.
Additionally, Plaintiff requested a minimal fee award for services performed by a
paralegal. [Dkt. 16-1.] If an attorney’s fee is awarded, the services of paralegals should be taken
into account. Missouri v. Jenkins, 491 U.S. 274, 286-87 (1989). Plaintiff asserted 1.10 hours
were expended by a paralegal in this case at the rate of $100.00 per hour. [Dkt. 16-1.] The
Court finds the hours for the work performed as well as the hourly rate for the paralegal are
reasonable. See, e.g., Chorak v. Astrue, Civil No. 2:11CV114, 2012 WL 1577448, at *2 (N.D.
Ind. May 4, 2012) (citing case law and finding the hourly rate of $100.00 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 Plaintiff’s initial request of $6,630.00 reasonable. However, because
both parties have consented to the reduced sum of $5,914.83 for attorney fees and expenses and
$400 for costs under the EAJA, for a total sum of $6,314.83 [Dkt. 17], the Court finds this
amount to be reasonable as well. Therefore, based on the foregoing reasons, Plaintiff’s Petition
for Attorney Fees Under the Equal Access to Justice Act [Dkt. 15] is DENIED AS MOOT, and
the parties’ Joint Motion to Award EAJA Fees [Dkt. 17] is GRANTED. Plaintiff is entitled to

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reasonable attorney fees, expenses, and costs in the amount of Six Thousand Three Hundred
Fourteen Dollars and Eighty-three Cents ($6,314.83). The fee award is payable to Plaintiff and
subject to a government offset to satisfy any pre-existing debt Plaintiff owes to the government.
After the Court enters this award, if Defendant can verify that Plaintiff owes no pre-existing debt
to the government subject to offset, Defendant will direct that the award be made payable to
Plaintiff’s attorney, pursuant to the EAJA assignment duly signed by Plaintiff and her counsel.
SO ORDERED.

Dated: 15 APR 2019

Distribution:
Jean Marie Godfrey
SOCIAL SECURITY ADMINISTRATION
[e-mail]
Charles D. Hankey
[e-mail]
Kathryn E. Olivier
UNITED STATES ATTORNEY'S OFFICE (Indianapolis)
[e-mail]

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