United States District Court, D. South Dakota, Western Division
JAMES B. DILLON, JR., Plaintiff,
NANCY A. BERRYHILL,  Acting Commissioner, Social Security Administration, Defendant.
JEFFREY L. VIKEN CHIEF JUDGE.
September 26, 2016, the court entered an order (1) reversing
the decision of the Commissioner of the Social Security
Administration (“Commissioner”) denying James
Dillon's application for benefits and (2) remanding the
case for the purpose of calculating and awarding benefits.
(Docket 21). Pursuant to the Equal Access to Justice Act
(“EAJA”), 28 U.S.C. § 2412, Margo Tschetter
Julius, counsel for Mr. Dillon timely moved for an award of
attorney's fees and expenses. (Docket 23). Mr. Dillon
seeks an award of $9, 371.33 in attorney's fees, court
costs of $431.50 and expenses of $609.14 in state and local
sales tax. Id. The Commissioner does not object to
an award of EAJA fees, but objects to the amount sought in
Mr. Dillon's motion. (Docket 26). For the reasons stated
below, the court grants in part and denies in part Mr.
Tschetter Julius asks the court to set the hourly rate at
$191.25, after factoring in the cost of living adjustment
permitted by the EAJA. (Docket 25 at p. 2). The Commissioner
does not object to the hourly rate requested. (Docket 26 at
p. 8). The EAJA sets a limit of $125 per hour for
attorney's fees. 28 U.S.C. § 2412(d)(2)(A). However,
a court may award a higher hourly fee if “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.”
Id. The court finds the rate of $191.25 is
reasonable considering the training and experience of Ms.
Tschetter Julius in the practice of social security law.
Commissioner seeks to reduce the number of Ms. Tschetter
Julius' billable hours to 35 hours. (Docket 26 at p. 8).
The Commissioner argues “nothing about the facts and
issues in this matter supports a deviation from the average
EAJA award, which is 20-40 hours.” Id. at p. 3
(referencing Coleman v. Astrue, No. C05-3045, 2007
WL 4438633 (N.D. Iowa Dec. 17, 2007)).
has the discretion to reduce the amount of the award or deny
an award “to the extent that the prevailing party
during the course of the proceedings engaged in conduct which
unduly and unreasonably protracted the final resolution of
the matter in controversy.” 28 U.S.C. §
2412(d)(1)(C). The court also must decide whether the hours
spent by Ms. Tschetter Julius representing Mr. Dillon were
“reasonably expended.” See Blum v.
Stenson, 465 U.S. 886, 901 (1984); 28 U.S.C. §
administrative record in Mr. Dillon's case was 2, 200
pages in length. (Docket 25 ¶ 8). The Commissioner
contends this fact should not be a material consideration in
the analysis. The Commissioner argues “because Ms.
Julius represented Plaintiff at the administrative level, she
should have already been sufficiently familiar with the facts
and merits of the case.” (Docket 26 at p. 3). Because
of Ms. Tschetter Julius' level of experience in handling
Social Security disability cases, the Commissioner asserts
“it seems unlikely that she would be unable to handle a
routine disability case within the time normally required by
other attorneys.” Id. at p. 4. After reviewing
Ms. Tschetter Julius' time log (Docket 25-1) and
considering the parties' arguments on this issue, the
court finds that only minor deductions are proper.
the manner in which Ms. Tschetter Julius recorded her hours
in her time log, the court finds it most helpful to aggregate
the hours into four discrete categories: time spent with the
client or performing administrative functions and preparing
the summons and complaint; time spent preparing the joint
statement of material facts (“JSMF”); time
preparing Mr. Dillon's motion and supporting memorandum
to reverse the decision of the Commissioner; and time spent
preparing a reply brief.
Tschetter Julius reports spending 2.3 hours with her client,
preparing the summons and complaint and communicating with
the court about the status of the case. The Commissioner
argues “[t]he EAJA does not compensate for work
performed at the administrative level, prior to filing the
complaint.” (Docket 26 at p. 5). The Commissioner
contends 1.3 hours of work in this category should be
court finds the time Ms. Tschetter Julius spent with her
client was not related to the activities at the
administrative level of the Social Security Administration.
Rather, her time with Mr. Dillon was directly related to
developing an in forma pauperis application and
preparing to file the summons and complaint in federal
district court. Only 0.8 hours were related to post-complaint
communications with her client about the status of his case.
Those tasks must be removed from EAJA consideration. The
court finds Ms. Tschetter Julius reasonably expended 1.7
hours in this category.
Tschetter Julius spent approximately 18.6 hours preparing the
JSMF in Mr. Dillon's case. This court requires attorneys
in social security cases to submit a highly detailed JSMF.
(Docket 8 at pp. 1-2). In this category, the Commissioner
contends the court must remove any time spend by counsel
moving the court for an extension of time to file the JSMF.
(Docket 26 at p. 6). The court notes that only 0.2 hour was
billed for the motion for extension of time to file the JSMF.
Because of the size of the administrative record, the JSMF
consisted of 258 numbered paragraphs, with very detailed
facts important to the appeal. (Docket 13). The court is
impressed Ms. Tschetter Julius was able to work through the
extensive administrative record and develop the JSMF as
efficiently as reported. The court finds Ms. Tschetter Julius
reasonably expended 18.4 hours preparing the JSMF in the
Tschetter Julius spent approximately 19.1 hours preparing her
motion and supporting memorandum to reverse the decision of
the Commissioner in Mr. Dillon's case. The Commissioner
asks the court to cut these hours as “the issues
addressed . . . were not novel or complex. Rather, the brief
largely focused on medical opinions, credibility, Listings,
Veterans Affairs ratings, and the ALJ's evaluation of the
evidence from outside the relevant period.” (Docket 26
at pp. 3-4). Because of the complex nature of the
plaintiff's challenges to the Commissioner's
decision, the court rejects the Commissioner's argument
and finds 19.1 hours spent preparing the motion and
supporting memorandum to reverse the decision of the
Commissioner is an appropriate amount of time given the facts
and complexity of Mr. Dillon's case.
Tschetter Julius spent approximately 8 hours preparing and
filing a reply brief in response to the government's
response to the motion to reverse the decision of the
Commissioner. (Docket 20). The Commissioner again seeks a
reduction in this category because it includes a motion for
extension of time to file the reply brief. (Docket 26 at p.
6). Based on the deduction made earlier, the court finds 0.2
hour should be deducted in this category. Because of the
complex nature of the issues in the case, the court finds Ms.
Tschetter Julius reasonably expended 7.8 hours preparing the
Tschetter Julius seeks an additional hour for the time
expended preparing the motion for attorney's fees.
(Docket 25-1 at p. 4). The Supreme Court held attorney's
fees under the EAJA may be awarded for the time spent
applying for the EAJA fee award. Commissioner,
Immigration & Naturalization Service v. Jean, 496