United States District Court, D. South Dakota, Northern Division
CHARNELL S. BROWN, Plaintiff,
NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY; Defendant.
CHARLES B. KORNMANN, United States District Judge
filed an appeal from the Commissioner's decision that she
was not disabled within the meaning of the Social Security
Act. I reversed the decision and remanded for rehearing.
Plaintiff filed a motion for attorney fees pursuant to the
Equal Access to Justice Act, 28 U.S.C. § 2412(d),
seeking an award of $9, 102.06, representing 49.5 hours of
attorney time at a rate of $183.88 per hour. The Commissioner
does not object to the payment of attorney fees but does
object to the number of hours for which counsel seeks
compensation. The Commissioner suggests that an award of no
more than 35 billable hours is appropriate in this case.
calculating a reasonable attorney fee under the EAJA, we
begin by "multiplying the number of hours reasonably
expended on the litigation by a reasonable hourly rate."
Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct.
1933, 1939, 76 L.Ed.2d 40 (1983) (analyzing fees under 42
U.S.C. § 1988 but cited with approval in EAJA cases by
Premachandra v. Mitts, 272 F.2d 717, 732 (8th Cir.
The district court... should exclude from this initial fee
calculation hours that were not "reasonably
expended." Cases may be overstaffed, and the skill and
experience of lawyers vary widely. Counsel for the prevailing
party should make a good faith effort to exclude from a fee
request hours that, are excessive, redundant, or otherwise
unnecessary, just as a lawyer in private practice ethically
is obligated to exclude such hours from his fee submission.
Hensley v. Eckerhart, 461 U.S. at 434, 103 S.Ct. at
1939-40. The district court has discretion in determining the
amount of a fee award but must "provide a concise but
clear explanation of its reasons for the fee award."
Id. at 437, 103 S.Ct. at 1941.
Commissioner argues in this case, as it has in almost every
social security disability case wherein the Commissioner
objects to the amount of attorney's fees requested, that
20 - 40 hours is the average amount of time reasonably
expended. District courts in the Second Circuit generally
hold that 20-40 hours is a reasonable expenditure of counsel
time for routine social security cases. Barbour v.
Colvin, 993 F.Supp.2d 284, 290 (E.D. N.Y. 2014) (citing
However, "[attorney's fees in excess of the routine
twenty to forty hours will be awarded where the facts of the
specific case warrant such an award." Relevant factors
to weigh include the size of the administrative record, the
complexity of the factual and legal issues involved,
counsel's experience, and whether counsel represented the
claimant during the administrative proceedings.
Id. (internal citations omitted). However, a review
of recent cases in the District of South Dakota belies the
Commissioner's claim. See Long v. Colvin, 2013
WL 5701640 (D.S.D. 2013), Schreier, District Judge (63.9
hours were reasonably expended on a 1, 013 page record);
Jones v. Astrue, 2013 WL 441907 (D.S.D. 2013),
Viken, Chief Judge (83.07 hours were reasonably expended);
Hansen v. Colvin, 2014 WL 4114348 (D.S.D. 2014),
Schreier, District Judge (68.69 hours reasonably expended on
an 837 page record); Colhoff v. Colvin, 2015 WL
751321 (D.S.D. 2015), Viken, Chief Judge (63.4 hours
reasonably expended); Ritter v. Berryhill, 2017 WL
5634869 (D.S.D. 2017), Viken, Chief Judge (54 hours were
reasonably expended on a 1, 394 page record); Stickler v.
Berryhill, 2017 WL 4792220 (D.S.D. 2017), Viken, Chief
Judge (74.5 hours were reasonably expended on a 700 page
record deemed "slightly longer than average"); and
Lays Hard v. Berryhill, 2017 WL 4797797 (D.S.D.
2017), Viken, Chief Judge (75.24 hours were reasonably
expended on a 1077 page record).
case, the administrative record was 714 pages. Counsel did
not represent plaintiff during administrative proceedings so
counsel was required to review the file in detail in order to
determine whether an appeal was justified by the facts and
the law and to prepare the opening brief. Counsel researched
and prepared 31 pages of briefs in support of the appeal.
Court has reviewed the billing records and finds that the
49.5 hours of compensable time requested was reasonably
expended. The Commissioner does not object to the rate of
$183.88 per hour. Thus, plaintiff is entitled to $9, 102.06
in attorney's fees. Counsel is employed by Disability
Rights South Dakota, formerly known as South Dakota Advocacy
Services, a non-profit corporation which is exempt from sales
tax. Plaintiff seeks no costs.
has signed an affidavit assigning any entitlement she may
have in an award of EAJA fees to her attorney. However,
pursuant to Astrue v. Ratliff, 560 U.S. 586, 596,
130 S.Ct. 2521, 2528, 177 L.Ed.2d 91 (2010), an award of
attorney's fees under the EAJA is payable to the
plaintiff "and thus subject to offset where the litigant
has relevant federal debts." Defendant does not object
to the request that fees be paid directly to counsel for
plaintiff pursuant to the affidavit of assignment if there is
no debt subject to offset.
upon the foregoing, IT IS ORDERED that plaintiffs motion,
Doc. 24, for attorney's fees under the Equal Access to
Justice Act, 28 U.S.C. § 2412(d), is granted. Plaintiff
is awarded $9, 102.06 representing 49, 5 hours of attorney
time at the rate of $183.88 per hour.
further ORDERED that the foregoing award is subject to offset
for any preexisting debt plaintiff owes to the United States.
After deducting any debt subject to offset. defendant ...