United States District Court, D. Minnesota
T. R., Plaintiff,
Nancy A. Berryhill, Acting Commissioner of Social Security, Defendant.
ELIZABETH COWAN WRIGHT UNITED STATES MAGISTRATE JUDGE
matter is before the Court on Plaintiff's Counsel's
Petition for Attorney Fees Under the Equal Access to Justice
(“EAJA”). (Dkt. 33.) Plaintiff seeks attorney
fees under the EAJA in the amount of $7, 702.26. The
Commissioner has filed a response to the Petition seeking a
reduction in the requested fees. (Dkt. 37.) For the reasons
stated below, Plaintiff's Petition is granted in part and
denied in part.
December 29, 2017, Plaintiff filed this case seeking judicial
review of a final decision by Defendant denying her
application for disability insurance benefits. As part of her
motion for summary judgment, Plaintiff challenged the
Administrative Law Judge's (“ALJ”) evaluation
of Plaintiff's treating physician's opinion and the
ALJ's evaluation of Plaintiff's symptoms. (Dkt. 21.)
On March 8, 2019, this Court granted Plaintiff's motion
for summary judgment in part, ordering that case be remanded
back to the ALJ as it related to his determination regarding
Plaintiff's subjective symptoms and the resulting weight
given to Plaintiff's treating provider. (Dkt. 29.)
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. See Christianburg, 434 U.S. at 415. 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).
[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 attorneys' fees
awarded under the EAJA must be reasonable. 28 U.S.C. §
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 substantially justified; rather it claims that
the fees claimed by Plaintiff's counsel are unreasonable.
Reasonableness of Fees and Costs
Appropriate Hourly Rate
through the Petition of her counsel, as well as his exhibits,
requests fees in the amount of $7, 702.26, calculated at the
rate of 38.2 hours x $201.63/hour. (Dkt. 33 ¶¶
6-8.) Plaintiff's counsel asserts that the $201.63/hour
billing rate is consistent with the Consumer Price Index
(“CPI”) for all urban consumers as of December
2017, when the case was initiated. (Dkt. 33 ¶ 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, 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