United States District Court, D. South Dakota, Southern Division
DANIEL P. HENDRICKSON, Plaintiff,
NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY; Defendant.
Veronica L. Duffy United States Magistrate Judge
AMENDED ORDER GRANTING PLAINTIFF'S MOTION FOR
ATTORNEY'S FEES AND COSTS DOCKET NO. 26
the court's order remanding this case to the Social
Security agency for further consideration, plaintiff Daniel
P. Hendrickson filed a motion for an award of attorney's
fees, expenses, and costs. See Docket No. 26. The
Commissioner objected in part to the request. See
Docket No. 32.
the EAJA, a prevailing party in a civil suit against the
United States or one of its agencies shall be awarded
attorney's fees and costs. See 28 U.S.C. §
2412(a) and (d)(1)(A). However, if the court finds that the
government's position was substantially justified, the
court may choose not to make such an award. Id. at
application for fees and costs under the EAJA must be made
“within thirty days of final judgment in the
action.” See 28 U.S.C. § 2412(d)(1)(B).
By local rule, litigants seeking attorney's fees in this
district must file a motion for attorney's fees within 28
calendar days after the entry of judgment, absent a showing
of good cause. See DSD L.R. 54.1C. Here, the court
entered final judgment in Mr. Hendrickson's favor on
January 18, 2019. See, Docket No. 19. Mr.
Hendrickson filed his motion for attorney's fees on
January 22, 2019. See Docket No. 22. Thus, Mr.
Hendrickson's motion is timely.
order to avoid an award of attorney's fees under the
EAJA, the government's position must have been
“substantially justified” at both the
administrative level and at the district court level.
Kelly v. Bowen, 862 F.2d 1333, 1337 (8th Cir. 1988).
In determining whether the government's position was
substantially justified, the court should examine whether
that position had a clearly reasonable basis in fact and in
law, “both at the time of the Secretary's decision
and the action for judicial review.” Id.;
Goad v. Barnhart, 398 F.3d 1021, 1025 (8th Cir.
2005). The government's position can be factually and
legally reasonable, “solid, ” even though that
position turned out to be not necessarily correct.
Kelly, 862 F.2d at 1337. A loss on the merits does
not give rise to a presumption that the Commissioner's
position was not substantially justified. Goad, 398
F.3d at 1025. The Commissioner bears the burden of proving
that its position was substantially justified. Id.
Hendrickson requested an award of the following:
Attorney's Fees ($188.75 hourly rate x
Sales Tax on Attorney's Fees (6.5%)
TOTAL AWARD REQUESTED:
$ 11, 946.52
Commissioner does not take issue with Mr. Hendrickson's
entitlement to an award in general, nor with counsel's
hourly rate, nor with the sales tax, or filing fee part of
the request. Instead, the Commissioner seeks a reduction of
Mr. Hendrickson's attorney's fees to 35 hours, so
that it falls within the “customary” hours of 20
to 40 hours “routinely” spent on a
“typical” social security file.
Hensley v. Eckerhart, 461 U.S. 424 (1983), the Court
explored the legislative history of 42 U.S.C. § 1988
allowing awards of attorney's fees for prevailing
plaintiffs in civil rights litigation. Courts should apply
the lodestar method: multiply the number of hours reasonably
expended on the litigation by a reasonable hourly rate.
Id. at 433. In determining the lodestar, the Court
noted that Congress cited approvingly to the 12 factors
outlined in Johnson v. Georgia Hwy. Express, Inc.,
488 F.2d 714 (5th Cir. 1974). Hensley, 461 U.S. at 429-30.
Courts applying the EAJA have applied the rationale from
Hensley and other civil rights attorney's fees
statutes. Costa v. Comm'r. Social Sec. Admin.,
690 F.3d 1132, 1135 (9th Cir. 2012).
twelve Johnson factors are: (1) the time and labor
required; (2) the novelty and difficulty of the questions;
(3) the skill requisite to perform the legal service
properly; (4) the preclusion of other employment by the
attorney in order to accept the case; (5) the customary fee;
(6) whether the fee is hourly or contingent; (7) time
limitations imposed by the client or the circumstances; (8)
the amount involved and the results obtained; (9) the
experience, reputation and ability of the attorney; (10) the
“undesirability” of the case; (11) the nature and
length of the professional relationship with the client; and
(12) awards in similar cases. Johnson, 488 F.2d at
Costa, the Ninth Circuit stated it is unlikely a
lawyer will spend unnecessary hours on a contingent fee case
in order to inflate her fee award in a case like a social
security appeal because “[t]he payoff is too
uncertain.” Costa, 690 F.3d at 1136 (quoting
Moreno v. City of Sacramento, 534 F.3d 1106, 1112-13
(9th Cir. 2008)). The court noted that social security cases
by their very nature are fact-intensive and require careful
review of the administrative record, making the adjective
“routine” “a bit of a misnomer.”
Id. at 1134 n.1. Instead, the court cautioned
deference to the “winning lawyer's professional
judgment as to how much time he was required to spend on the
case.” Id. at 1136. The court held that a
district court can reduce an attorney's fee award by up
to 10 percent without detailed explanation, but larger cuts
required more specific explanation. Id.
court rejected the lower court's application of a
“rule of thumb” of 20 to 40 hours for a
“routine” social security case. Id. The
court noted surveying fee awards in similar cases was useful
in determining the reasonable hourly rate, but it was
“far less useful for assessing how much time an
attorney can reasonably spend on a specific case because that
determination will always depend on case-specific factors
including” the size of the administrative ...