United States District Court, D. Kansas
MEMORANDUM AND ORDER
Crow, U.S. District Senior Judge
September 28, 2016, this court issued an order reversing the
decision of the Commissioner and remanding this case for
further hearing (Doc. 30). On December 27, 2016, plaintiff
filed an application for attorney fees under the Equal Access
to Justice Act, 28 U.S.C. § 2412 (EAJA) (Doc. 32).
Defendant filed their response brief on January 10, 2017
(Doc. 35), and plaintiff filed a reply brief on March 13,
2017 (Doc. 41).
General legal standards
EAJA provides for an award of attorney fees to a prevailing
party in a suit against the United States unless the court
finds that the position of the United States was
substantially justified or that special circumstances make an
award unjust. Hackett v. Barnhart, 475 F.3d 1166,
1172 (10th Cir. 2007); Estate of Smith v.
O'Halloran, 930 F.2d 1496, 1501 (10th Cir.1991).
Under the EAJA, a prevailing party includes a plaintiff who
secures a sentence four remand reversing the
Commissioner's denial of benefits as to “any
significant issue in litigation which achieve[d] some of the
benefit ... sought in bringing suit.” Tex. State
Teachers Ass'n v. Garland Indep. Sch. Dist., 489
U.S. 782, 791-92, 109 S.Ct. 1486, 103 L.Ed.2d 866 (1989);
Sommerville v. Astrue, 555 F.Supp.2d 1251, 1253 (D.
Commissioner bears the burden to show that his position was
substantially justified. Gilbert v. Shalala, 45 F.3d
1391, 1394 (10th Cir.1995). However, the party seeking the
fees has the burden to show that both the hourly rate and the
number of hours expended is reasonable in the circumstances.
Hensley v. Eckerhart, 461 U.S. 424, 433-34, 437, 103
S.Ct. 1933, 76 L.Ed.2d 40 (1983); Sommerville v.
Astrue, 555 F.Supp.2d at 1253.
Reasonableness of EAJA request
is requesting attorney fees for 61.85 hours at a rate of
$192.28 an hour, for a total of $11, 892.51 (this includes an
additional 4 hours for work on the EAJA reply brief).
Defendant argues that this is unreasonable, and that a
reasonable fee would be $6, 000.00, which, at $192.28 an
hour, would be equivalent to 31.2 hours. As noted above, the
party seeking fees has the burden to show that the hourly
rate and the number of hours is reasonable.
court has indicated in the past, the typical EAJA fee
application in social security cases is between 30 and 40
hours. Thus, courts in this district have not hesitated to
disallow hours over 40 as unreasonable in routine EAJA social
security cases. Williams v. Astrue, 2007 WL 2582177
at *1 & n.3 (D. Kan. Aug. 28, 2007); see Lavoie v.
Colvin, 2016 WL 4181323 at *3 (D. Kan. Aug. 8, 2016)(As
judges in this district have noted for more than twenty
years, a typical number of hours claimed in EAJA applications
in “straightforward” disability cases is between
thirty and forty hours). However, this court has permitted an
award of 76.75 hours upon finding that the amount of time
documented was reasonably necessary to accomplish the tasks
listed. Masenthin v. Barnhart, 2005 WL 1863146 at
*3-4 (D. Kan. July 21, 2005). Courts in this district have
recently approved 67.86 hours of attorney time, noting a
record of more than 1, 000 pages, Sommerville v.
Astrue, 555 F.Supp.2d 1251, 1254 (D. Kan. 2008), and
have found that 53.75 hours was reasonably expended (a
reduction from a request of 65.75 hours), Farmer v.
Astrue, 2010 WL 4904801 at *1-3 (D. Kan. 2010). In the
case of Linder v. Astrue, Case No. 09-1210-SAC (D.
Kan. June 21, 2011, Doc. 36) this court found that 54.10
hours was reasonably expended (a reduction from a request of
68.55 hours). In the case of Bonzo v. Astrue, Case
No. 11-2275-SAC (D. Kan. May 23, 2012, Doc. 23), this court
found that 44 hours was reasonably expended (a reduction from
a request of 56.90 hours). Where a plaintiff has obtained
excellent results, his attorney should recover a fully
compensatory fee. Hensley v. Eckerhart, 461 U.S.
424, 435, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983).
court's most recent EAJA case, Tate v. Colvin,
Case No. 15-4870-SAC (D. Kan. Dec. 20, 2016; Doc. 29),
plaintiff requested attorney's fees of 58 hours;
defendant indicated that they believed 35 hours was
reasonable. The court held that attorney fees of 50 hours was
reasonable on the facts of that case.
court has carefully reviewed the briefs and issues raised by
the parties in this case. Plaintiff's counsel spent 36.1
hours meeting with his client, preparing the complaint and
preparing a 28 page initial brief in which plaintiff
successfully argued that the ALJ erred in its evaluation of
three medical opinions. Plaintiff raised other issues which
did not provide a basis for remand of the case, although the
court ordered that evidence regarding two of plaintiff's
impairments (plaintiff's headaches and bladder
incontinence) be reviewed by the ALJ on remand.
Plaintiff's counsel spent 20.2 hours writing a 22 page
reply brief. In light of the issues raised in this case, the
court finds that 34 hours was reasonably expended through the
writing of the initial brief, and that 14 hours was
reasonably expended in the writing of the reply brief. The
court finds that the other hours billed by plaintiff were
reasonable (1.55 hours). The court will add an additional 4
hours for plaintiff's counsel to respond to
defendant's objection to the EAJA motion.
summary, the court finds that 53.55 hours was reasonably
expended in presenting this case to the court. Therefore, a
reasonable attorney fee pursuant to the EAJA is $10, 296.59
(53.55 hours x $192.28 an hour).
THEREFORE ORDERED that plaintiff's motion for attorney
fees pursuant to the Equal Access to Justice Act (Doc. 32) is
granted in part, and the Commissioner is ordered to pay
plaintiff an attorney fee in the amount of $10, 296.59.