United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
CLIFFORD J. PROUD UNITED STATES MAGISTRATE JUDGE
matter is before the Court on plaintiff's Motion for
Attorney's Fees Under the Equal Access to Justice Act.
(Doc. 39). Defendant filed a response in
opposition at Doc. 42, plaintiff filed a reply at Doc. 43.
to the Equal Access to Justice Act, 28 U.S.C.
§2412(d)(1)(A), the Court shall award attorney's
fees and expenses to a prevailing party in a civil action
against the United States, including proceedings for judicial
review of agency action, unless the government's position
was substantially justified. The hourly rate for
attorney's fees is not to exceed $125.00 per hour
“unless the court determines that an increase in the
cost of living or a special factor, such as the limited
availability of qualified attorneys for the proceedings
involved, justifies a higher fee.” §2412(d)(2)(A).
case was remanded to the Commissioner for further proceedings
pursuant to sentence four of 42 U.S.C. §405(g).
Plaintiff is, therefore, the prevailing party. See,
Shalala v. Schaefer, 509 U.S. 292, 302 (1993).
response to the motion, the Commissioner argues the Court
should not award fees because the hours for which she seeks
payment were not reasonably expended. She concedes that the
rate of $191.27 is fair and waives the argument that her
position was substantially justified. The Commissioner
contends that the Court should allow plaintiff to recover
fees for 40.77 hours of work and deny the remaining 26.06
contends the number of hours her counsel and his support
staff expended on the case, approximately 70.08, is
reasonable and the court has the discretion to award fees for
those hours. There is no per se rule for capping
hours, instead the Court must analyze if the hours are
“reasonably expended.” It is an attorney's
responsibility to use “billing judgment” because
“hours that are not properly billed to one's client
also are not properly billed to one's adversary pursuant
to statutory authority.” Hensley v. Eckerhart,
461 U.S. 424, 433-434 (1983). To determine if hours are
reasonably expended, factors like novelty and difficulty of
the questions, the skill required to perform the legal
service, and the customary fee are taken into consideration.
Id. at 434.
Commissioner is correct that plaintiff's counsel
routinely raises the issues he raised in this case in other
Social Security cases. However, this does not support the
idea that plaintiff's counsel put little or no work
effort into this case. Further, classifying a case as typical
does not mean plaintiff is not entitled to fair compensation
for the time her attorney spent advocating on her behalf.
Commissioner admits the transcript was long but she stated
that a significant portion of the transcript pertained to a
period of time during which the ALJ found plaintiff to be
disabled. She infers that plaintiff's counsel did not
need to spend time analyzing the records after the date of
disability. The Court here found that the ALJ's decision
that plaintiff was disabled on a certain date was illogical.
Further, the Commissioner referred to plaintiff's
condition after the alleged onset date within her support for
the ALJ's position. The idea that plaintiff's
attorney should not have spent time reviewing those records
Commissioner also contends plaintiff did not “start
from scratch” and used arguments presented first to the
Appeals Council within her brief to this Court. As plaintiff
notes, she refers to three points within plaintiff's
briefs, but fails to note the changes within the brief
regarding content and scope.
Commissioner argues that the sum sought by plaintiff is
significantly outside the norm for cases brought by this
Court. The Court notes that 70.08 hours is not completely
outside the realm of reasonableness for a social security
disability case. See, e.g., Porter v. Barnhart, No.
04 C 6009, 2006 WL 1722377, at 4 (N.D. Ill. June 19, 2006)
(awarding 88.2 hours of attorney's fees). And while the
Court notes that 70.08 hours is considered to be on the
“high end of the range of hours that courts within this
circuit have considered reasonable for social security
appeals.” Schulten v. Astrue, 2010 WL 2135474,
at *6 (N.D.Ill.2010). However, as plaintiff's counsel
notes, there are many cases where comparable or greater have
evidentiary record in this case was over 1100 pages long, and
plaintiff's counsel spent 16 pages addressing the nature
and scope of the evidence as it related to the ALJ's
decision. Plaintiff's counsel claims he spent 40.25 hours
drafting the motion for summary judgment and supporting
memorandum. This is understandable considering he did not
also claim additional time spent analyzing the record.
Further, spending 4.83 hours on the EAJA brief is logical
since plaintiff had to obtain affidavits from other
attorneys, research, draft, and submit the brief.
Commissioner then argues that plaintiff's opening brief
exceeded the twenty page limit allowed by the local rules. As
a result, she requests that the Court disallow one-quarter of
the hours spent preparing the brief. The Court agrees with
plaintiff that the reduction is inappropriate with respect to
the history of the case and this Court's past practices
with regard to social security cases. The Commissioner did
not object to the length of the brief when it was initially
filed and her attempt to do so now fails.
the Commissioner argues that the Court should decline to
award plaintiff fees for the reply briefs submitted by
plaintiff. At the same time, plaintiff argues that she should
receive an additional $1, 099.80 (5.75 hours) for time spent
replying to the Commissioner regarding attorney's fees.
Plaintiff was allowed to file her reply to the initial
briefings and, again, the Commissioner had no problem with
that at the time. Plaintiff was allowed to proceed with her
reply arguments and her attorney's time doing so can be
compensated. However, the Court notes that 5.75 hours
replying to the Commissioner's reply to attorney's
fees seems excessive. Plaintiff was not required to file a
reply for the merits of the motion to be reviewed. Plaintiff
did have to do some additional research for novel points
argued by the Commissioner within her reply, but 5.75 hours
is extensive. The Court believes that half that amount of
time (2.88 hours) at $191.27 ($550.86) is adequate
compensation for the time spent on the reply.
reasons discussed above, plaintiff's Motion for
Attorney's Fees Under the Equal Access to ...