Mohr v. Saul
Filing
41
ORDER granting 36 Motion for Attorney Fees. Signed by Magistrate Judge Elizabeth Cowan Wright on 9/19/2022. (SK)
CASE 0:20-cv-01868-ECW Doc. 41 Filed 09/19/22 Page 1 of 5
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Patricia M.,
Case No. 20-cv-1868 (ECW)
Plaintiff,
ORDER
v.
Kilolo Kijakazi,
Acting Commissioner of Social Security,
Defendant.
This matter came before the Court on Plaintiff’s Motion for Award of Attorney's
Fees Pursuant to the Equal Access to Justice Act, 28 U.S.C. Sec. 2412 (Dkt. 36).
Defendant Kilolo Kijakazi, Acting Commissioner of Social Security, does not object to
the amount sought. (Dkt. 40.) For the reasons discussed below, Plaintiff’s Motion is
granted.
I.
BACKGROUND
On August 28, 2020, Plaintiff filed this case seeking judicial review of a final
decision by Defendant denying her application for disability insurance benefits. (Dkt. 1.)
On March 7, 2022, this Court granted Plaintiff’s Motion for Summary Judgment in part
and remanded this case back to the Commissioner pursuant to sentence four of 42 U.S.C.
§ 405(g). (Dkt. 32.)
CASE 0:20-cv-01868-ECW Doc. 41 Filed 09/19/22 Page 2 of 5
II.
A.
ANALYSIS
Legal Standard
“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.
28 U.S.C. § 2412(d)(1)(B). Any attorney fees awarded under the EAJA must be
reasonable. 28 U.S.C. § 2412(b).
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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 has not argued that its position was
substantially justified, nor does it object to the amount sought. (See Dkt. 40.)
B.
Reasonableness of Fees and Costs
1.
Appropriate Hourly Rate
Plaintiff, through the motion of her counsel, as well as the exhibits, requests fees
in the amount of $5,907.48. Plaintiff requests attorney fees at an hourly rate of $208.01
for 28.40 hours of work performed in 2020 through 2022. (Dkt. 37 at 5.) Plaintiff’s
counsel asserts that the billing rate of $208.01 is consistent with the Consumer Price
Index, all Urban Consumers (“CPI-U”) for the periods the work was performed. (Dkt. 37
at 5; Dkt. 38-2.)
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,
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
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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 $208.01, which is consistent with application of the CPI in July 2020, when
counsel began work on Plaintiff’s behalf: $125 (statutory rate) × 259.101 (July 2020 CPIU) / 155.7 = $208.01. (See Dkt. 38-2 at 2.)
2.
Reasonableness of the Time Expended by Plaintiff’s Counsel
The Court has reviewed all itemized time records for the work performed in this
case and finds that the 28.40 hours billed, and the legal work performed, are not
excessive or unreasonable. Courts routinely grant motions requesting reimbursement for
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.”).
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C.
Conclusion
Based on the above, the Court will award the following reasonable attorney fees to
Plaintiff:
28.40 hours x $208.01 = $5,907.48
TOTAL: $5,907.48
III.
ORDER
Based on the above, and on the files, records, and proceedings herein, IT IS
ORDERED THAT:
1.
Plaintiff’s Motion for Award of Attorney's Fees Pursuant to the Equal
Access to Acting Commissioner of Social Security, Justice Act, 28 U.S.C. Sec. 2412
(Dkt. 36) is GRANTED as follows: Plaintiff is AWARDED $5,907.48 for reasonable
attorney’s fees under the EAJA.
2.
In accordance with the EAJA and Astrue v. Ratliff, 560 U.S. 586 (2010), the
EAJA award is payable to Plaintiff as the litigant and subject to offset to satisfy any preexisting debts that the litigant may owe to the United States.
3.
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 Edward
C. Olson.
DATED: September 19, 2022
s/ Elizabeth Cowan Wright
ELIZABETH COWAN WRIGHT
United States Magistrate Judge
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