Charnell S. Brown v. Carolyn W. Colvin, Commissioner of Social Security
ORDER granting 24 Motion for Attorney Fees. Signed by U.S. District Judge Charles B. Kornmann on 3/13/18. (SKK)
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
CHARNELL S. BROWN,
NANCY A. BERRYHILL, ACTING
COMMISSIONER OF SOCIAL SECURITY;
Plaintiff"filed an appeal from the Commissioner's decision that she was not disabled
within the meaning of the Social Security Act. I reversed the decision and remanded for
rehearing. Plaintiff filed a motion for attorney fees pursuant to the Equal Access to Justice Act,
28 U.S.C. § 2412(d), seeking an award of$9,102.06, representing 49.5 hours of attorney time at
a rate of$183.88 per hour. The Commissioner does not object to the payment of attomey fees
but does object to the number of hours for which counsel seeks compensation. The
Commissioner suggests that an award of no more than 35 billable hours is appropriate in this
In calculating a reasonable attomey fee under the EAJA,we begin by "multiplying the
number of hours reasonably expended on the litigation by a reasonable hourly rate." Henslev v.
Eckerhart. 461 U.S. 424,433, 103 S. Ct. 1933,1939, 76 L. Ed. 2d 40(1983)(analyzing fees
under 42 U.S.C. § 1988 but cited with approval in EAJA cases by Premachandra v. Mitts. 272
F.2d 717, 732(8th Cir. 1984)).
The district court... should exclude from this initial fee calculation hours that
were not "reasonably expended." Cases may be overstaffed, and the skill and
experience oflawyers vary widely. Counsel 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.
Henslev v. Eckerhart. 461 U.S. at 434,103 S. Ct. at 1939-40. The district court has discretion in
determining the amount of a fee award but must "provide a concise but clear explanation ofits
reasons for the fee award." Id. at 437,103 S.Gt. at 1941.
The Commissioner argues in this case, as it has in almost every social security disability
case wherein the Commissioner objects to the amount of attorney's fees requested, that 20-40
hours is the average amount oftime reasonably expended. District courts in the Second Circuit
generally hold that 20-40 hours is a reasonable expenditure of counsel time for routine social
security cases. Barbour v. Colvin. 993 E. Supp. 2d 284, 290(E.D. N.Y. 2014)(citing cases).
However,"[a]ttomey's fees in excess of the routine twenty to forty hours will be
awarded where the facts of the specific case warrant such an award." Relevant
factors to weigh include the size of the administrative record, the complexity of
the factual and legal issues involved, counsel's experience, and whether counsel
represented the claimant during the administrative proceedings.
Id.(internal citations omitted). However, a review of recent cases in the District of South
Dakota belies the Commissioner's claim. See Long v. Colvin. 2013 WL 5701640(D.S.D. 2013),
Schreier, District Judge (63.9 hours were reasonably expended on a 1,013 page record); Jones v.
Astrue, 2013 WL 441907(D.S.D. 2013), Viken, Chief Judge(83.07 hours were reasonably
expended); Hansen v. Colvin. 2014 WL 4114348 (D.S.D. 2014), Schreier, District Judge (68.69
hours reasonably expended on an 837 page record); Colhoff v. Colvin. 2015 WL 751321 (D.S.D.
2015), Viken, Chief Judge (63.4 hours reasonably expended); Ritter v. Berrvhill. 2017 WL
5634869(D.S.D. 2017), Viken, Chief Judge(54 hours were reasonably expended on a 1,394
page record); Stickler v. Berrvhill. 2017 WL 4792220(D.S.D. 2017), Viken, Chief Judge (74.5
hours were reasonably expended on a 700 page record deemed "slightly longer th^ average");
and Lavs Hard v. Berrvhill. 2017 WL 4797797(D.S.D. 2017), Viken, Chief Judge (75.24 hours
were reasonably expended on a 1077 page record).
s In this case, the administrative record was 714 pages. Counsel did not represent plaintiff
during administrative proceedings so counsel was required to review the file in detail in order to
determine whether an appeal was justified by the facts and the law and to prepare the opening
brief. Counsel researched and prepared 31 pages of briefs in support ofthe appeal.
the Court has reviewed the billing records and finds that the 49.5 hours of compensable
time requested was reasonably expended. The Commissioner does not object to the rate of
$183.88 per hour. Thus, plaintiff is entitled to $9,102.06 in attorney's fees. Counsel is
employed by Disability Rights South Dakota, formerly known as South Dakota Advocacy
Services, a non-profit corporation which is exempt from sales tax. Plaintiff seeks no costs.
Plaintiff has signed an affidavit assigning any entitlement she may have in an award of
EAJA fees to her attorney. However, pursuant to Astrue v. Ratliff 560 U.S. 586, 596,130 S. Ct.
2521, 2528,177 L. Ed. 2d 91 (2010), an award of attorney's fees under the EAJA is payable to
the plaintiff"and thus subject to offset where the litigant has relevant federal debts." Defendant
does not object to the request that fees be paid directly to counsel for plaintiff pursuant to the
affidavit of assignment if there is no debt subject to offset.
Based upon the foregoing,
IT IS ORDERED that plaintiffs motion, Doc. 24, for attorney's fees under the Equal
Access to Justice Act, 28 U.S.C. § 2412(d), is granted. Plaintiff is awarded $9,102.06
representing 49.5 hours of attorney time at the rate of$183.88 per hour.
It is further ORDERED that the foregoing award is subject to offset for any pre
existing debt plaintiff owes to the United States. After deducting any debt subject to offset,
defendant shall pay the EAJA fees directly to counsel for the plaintiff.
day of March, 2018.
BY THE COURT:
CHARLES B. KORNMANN
United States District Judge
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