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T.R. v. Berryhill

United States District Court, D. Minnesota

October 2, 2019

T. R., Plaintiff,
v.
Nancy A. Berryhill, Acting Commissioner of Social Security, Defendant.

          ORDER

          ELIZABETH COWAN WRIGHT UNITED STATES MAGISTRATE JUDGE

         This 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.

         I. BACKGROUND

         On 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.)

         II. ANALYSIS

         A. 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. 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).

         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 attorneys' fees awarded under the EAJA must be reasonable. 28 U.S.C. § 2412(b).

         Attorney's 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.

         B. Reasonableness of Fees and Costs

         1. Appropriate Hourly Rate

         Plaintiff, 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 ...


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