Hurlbut v. Saul
ORDER granting in part and denying in part 37 Motion for Attorney Fees Signed by Magistrate Judge Elizabeth Cowan Wright on 9/8/2021.(SK)
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UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Case No. 20-cv-00511 (ECW)
KILOLO KIJAKAZI, Acting
Commissioner of Social Security, 1
This matter is before the Court on Plaintiff’s Counsel’s Petition for Attorney Fees
Under the Equal Access to Justice Act. (Dkt. 37.) Plaintiff and Plaintiff’s counsel seek
attorney fees under the Equal Access to Justice Act, 28 U.S.C. § 2412 (“EAJA”) in the
amount of $7,105.05. (Id.) The Commissioner has filed a response noting no objections
to the amount of fees requested by Plaintiff. (Dkt. 40.) For the reasons discussed below,
Plaintiff’s Petition is granted in part and denied in part.
On February 13, 2020, Plaintiff filed this case seeking judicial review of a final
decision by Defendant denying his application for disability insurance benefits. (Dkt. 1.)
On January 9, 2020, this Court granted Plaintiff’s Motion for Summary Judgment and
Kilolo Kijakazi has succeeded Andrew Saul as Acting Commissioner of the Social
Security Administration and is therefore substituted as the named defendant. See Fed. R.
Civ. P. 25(d).
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remanded this case back to the Commissioner pursuant to sentence four of 42 U.S.C.
§ 405(g). (Dkt. 34.)
“It is the general rule in the United States that in the absence of legislation
providing otherwise, litigants must pay their own attorney’s fees.” Christianburg
Garment Co. v. EEOC, 434 U.S. 412, 415 (1978) (citation omitted). Congress has
provided for limited exceptions to the general rule. Id. The EAJA is one of those
exceptions. The EAJA provides that “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 . . .
including proceedings for judicial review of agency action, brought by or against the
United States in any court having jurisdiction of the action, 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)(A).
Under the EAJA:
[A] party seeking an award of fees and other expenses shall, within thirty
days of final judgment in the action, submit to the court an application for
fees and other expenses which shows that the party is a prevailing party and
is eligible to receive an award under this subsection, and the amount sought,
including 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. The
party shall also allege that the position of the United States was not
substantially justified. Whether or not the position of the United States was
substantially justified shall be determined on the basis of the record
(including the record with respect to the action or failure to act by the agency
upon which the civil action is based) which is made in the civil action for
which fees and other expenses are sought.
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28 U.S.C. § 2412(d)(1)(B). Any attorney fees awarded under the EAJA must be
reasonable. 28 U.S.C. § 2412(b).
Attorney fees are not to be awarded under the EAJA merely because the
Government lost the case. See Welter v. Sullivan, 941 F.2d 674, 676 (8th Cir. 1991)
(citations omitted). However, Plaintiff is entitled to fees unless the Government’s
position was substantially justified. See Lauer v. Barnhart, 321 F.3d 762, 764 (8th Cir.
2003). The Government bears the burden of proving substantial justification for its
position in the litigation. Id. Here, the Government is not claiming that its position was
Reasonableness of Fees and Costs
Appropriate Hourly Rate
Plaintiff, through the motion of his counsel, as well as the exhibits, requests fees in
the amount of $7,105.05. Plaintiff requests attorney fees at an hourly rate of $207.75 for
34.2 hours of work performed in 2020 and 2021. (Dkt. 38-1.) Plaintiff’s counsel asserts
that the billing rate of $207.75 is consistent with the Consumer Price Index, all Urban
Consumers (“CPI-U”) for the periods the work was performed, starting in February 2020.
(Dkt. 37 ¶ 5.)
The EAJA provides 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 Eighth Circuit has
concluded that this language means “that ‘the district court may, upon proper proof,
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increase the . . . rate for attorney’s fees to reflect the increase in the cost of living . . . .’”
Johnson v. Sullivan, 919 F.2d 503, 504 (8th Cir. 1990) (quoting Kelly v. Bowen, 862 F.2d
1333, 1336 (8th Cir. 1988) (citations omitted)). The CPI constitutes “‘proper proof’ of
the increased cost of living since the EAJA’s enactment and justifies an award of
attorney’s fees greater than [that provided for by the EAJA].” Id. (citations omitted); see
also Kelly, 862 F.2d at 1336 (citations omitted). The cost of living adjustment is
calculated by multiplying the standard EAJA rate by the CPI for urban consumers for
each year attorney’s fees are sought, and then dividing the product by the CPI in the
month that the cap was imposed, in this case 155.7 for March of 1996, the year the new
statutory cap of $125 was put into place. See Knudson v. Barnhart, 360 F. Supp. 2d 963,
974 (N.D. Iowa 2004). As stated previously, the Government does not dispute the hourly
rate of $207.75. However, the rate of hourly attorney fees (including the cost of living
adjustment entitled by counsel) would be: $125 (statutory rate) × 258.7 (February 2020
CPI-U) 2 / 155.7 = $207.70. Plaintiff appears to have slightly miscalculated his result,
asserting that this calculation comes out to $207.75, when it in fact comes out to $207.70.
(See Dkt. 37 ¶ 5.)
Reasonableness of the Time Expended by Plaintiff’s Counsel
The Court has reviewed all other itemized time records for the work performed in
this case and finds that the 34.2 hours billed, and the legal work performed, are not
excessive or unreasonable. Courts routinely grant motions requesting reimbursement for
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a similar number of hours. See, e.g., Dianna L. B. v. Saul, No. 19-CV-2561 (TNL), 2021
WL 733995, at *2 (D. Minn. Feb. 25, 2021) (collecting cases) (“Awards just outside of
[20 to 40 hours] are also not uncommon.”).
Based on the above, the Court will award the following reasonable attorney fees to
34.2 hours x $207.70 = $7,103.34
Based on the above, and on the files, records, and proceedings herein, IT IS
Plaintiff’s Counsel’s Petition for Attorney Fees Under the Equal Access to
Justice Act (Dkt. 37) is GRANTED IN PART and DENIED IN PART as follows:
Plaintiff is AWARDED $7,103.34 for reasonable attorney’s fees under the EAJA.
In accordance with the EAJA and Astrue v. Ratliff, 560 U.S. 586 (2010), the
EAJA award be payable to Plaintiff as the litigant and subject to offset to satisfy any preexisting debts that the litigant may owe to the United States.
Pursuant to the Plaintiff’s assignment of attorney fees, Defendant shall send
the EAJA payment, after any required offset, to Plaintiff’s counsel: the office of Karl E
DATED: September 8, 2021
s/ Elizabeth Cowan Wright
ELIZABETH COWAN WRIGHT
United States Magistrate Judge
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