SMITH v. KIJAKAZI

Filing 25

ORDER granting 21 Motion for Attorney Fees Pursuant to the Equal Access to Justice Act. (SEE ORDER.) Signed by Magistrate Judge Mark J. Dinsmore on 1/19/2023. (TPS)

Case 2:21-cv-00224-MJD-JRS Document 25 Filed 01/19/23 Page 1 of 5 PageID #: 1150

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION
BARBARA S.,
Plaintiff,
v.
KILOLO KIJAKAZI,
Defendant.

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No. 2:21-cv-00224-MJD-JRS

ORDER ON MOTION FOR EAJA FEES
This matter is before the Court 1 on Plaintiff's Motion for Award of Attorney Fees
Pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412(d). [Dkt. 21.] The Court
GRANTS the motion for the reasons set forth below.
I. Background
On May 21, 2021, Plaintiff filed her Complaint seeking judicial review of the ALJ's
unfavorable finding denying Plaintiff's application for disability benefits. [Dkt. 1.] The Court
ruled in favor of Plaintiff and entered judgment on September 15, 2022, reversing the decision of
the Commissioner and remanding for further proceedings. [Dkt. 20.] Plaintiff timely filed the
instant motion with supporting documentation on December 8, 2022, requesting an EAJA
attorney fee award in the amount of $10,862.25. [Dkt. 21.]

On May 28, 2021, the parties filed a joint consent to the jurisdiction of the assigned magistrate judge. [Dkt. 9.] On
June 1, 2021, Judge Sweeney referred the matter to Judge Pryor, who was the assigned magistrate judge at that time.
[Dkt. 10.] On December 15, 2022, this matter was reassigned from Magistrate Judge Pryor to the undersigned.
[Dkt. 22.] Pursuant to the parties' consent and the order referring the case to the assigned magistrate judge, the
parties' consent to the undersigned became effective thirty days after the date of reassignment if no objection was
filed. [Dkts. 9 & 10.] More than thirty days have passed since the reassignment, and no objection has been filed.

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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 on a Petition for EAJA fees, the movant must, within thirty days of final
judgment in the action, file an 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).
There is no question that Plaintiff is a prevailing party in this case. See Shalala v.
Schaefer, 509 U.S. 292 (1993) (holding that 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). Plaintiff has provided appropriate documentation for her fee
request and alleged that the position of the Commissioner was not substantially justified. 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). The Commissioner has not done so here; indeed, the
Commissioner has filed a response to the motion in which she states that she does not object to
the fee request. [Dkt. 24.] The Court also is not aware of any "conduct which unduly and
unreasonably protracted the final resolution of the matter in controversy" by Plaintiff or her

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counsel. Therefore, the Court will not reduce or deny an award of fees or expenses on such
grounds.
Finally, the Court must determine whether the amount of the fee award sought by
Plaintiff is reasonable pursuant to the terms of the EAJA. 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 has done
so. See [Dkt. 21]. Plaintiff's counsel spent 35.25 hours on this case in 2021 and 10.5 hours on
this case in 2022, and their staff spent 6.0 hours, which the Court finds to be reasonable.
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
of the statute permits the Court to allow for "an increase in the cost of living" to arrive at 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 has 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.
Plaintiff sets out the appropriate calculation of the applicable hourly rates permitted by
the EAJA, taking into account the increase in the cost of living, as set forth in the Consumer

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Price Index-Urban, since the statutory hourly rate was set at $125 per hour in March 1996. See
[Dkt. 21-2.] That calculation arrives at a maximum statutory hourly rate of greater than the
$223.00 requested by counsel. The Court finds that this rate does not exceed the prevailing
market rate in the community by lawyers of comparable skill and experience and is consistent
with the rate approved in other similar cases in this district. The Court also finds that the
$110.00 hourly rate requested for the work of non-attorney staff is reasonable.
III. Conclusion
For the reasons set forth above, the Court GRANTS Plaintiff's Motion for Award of
Attorney Fees Pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412(d), [Dkt. 21], and
awards fees in the amount of $10,862.25. An award under the EAJA belongs to Plaintiff and not
her attorney and can be offset to satisfy any pre-existing debt that Plaintiff owes the United
States. Astrue v. Ratliff, 560 U.S. 586 (2010). However, if Defendant verifies that Plaintiff does
not owe a pre-existing debt to the government subject to the offset, Defendant shall direct that
the award be made payable to Forbes Rodman P.C., pursuant to the EAJA assignment duly
signed by Plaintiff and counsel, [Dkt. 21-5]. If payment is mailed, as compared to electronically
deposited, it shall be mailed to counsel's address of record: Forbes Law Office, PO Box 374,
Angola, IN 46703.
SO ORDERED.

Dated: 19 JAN 2023

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Distribution:
Service will be made electronically
on all ECF-registered counsel of record via
email generated by the Court's ECF system.

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