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Hendrickson v. Berryhill

United States District Court, D. South Dakota, Southern Division

February 26, 2019


          Veronica L. Duffy United States Magistrate Judge



         Following 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.


         Under 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 (d)(1)(A).

         An 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.

         In 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.

         Mr. Hendrickson requested an award of the following:

Attorney's Fees ($188.75 hourly rate x 57.44[1] hours)

$10, 841.80

Sales Tax on Attorney's Fees (6.5%)


Filing Fee



$ 11, 946.52

         The 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.

         In 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).[2] 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).

         The 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 718-19.

         In 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.

         The 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 ...

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