United States District Court, D. South Dakota, Southern Division
SEAN K. WHITTLE, Plaintiff,
NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY; Defendant.
AMENDED ORDER GRANTING PLAINTIFF'S MOTIONS FOR
ATTORNEY'S FEES AND COSTS DOCKET NOS. 26 &
VERONICA L. DUFFY, UNITED STATES MAGISTRATE JUDGE.
the court's order remanding this case to the Social
Security agency for further consideration, plaintiff Sean K.
Whittle filed a motion and supplemental motion for an award
of attorney's fees, expenses, and costs. See
Docket Nos. 26 & 31. The Commissioner objected in part to
the request. See Docket No. 29.
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. Whittle's favor on May 15,
2019. See, Docket No. 24. Mr. Whittle filed his
motion for attorney's fees on May 25, 2019. See
Docket No. 26. Thus, Mr. Whittle'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.
Whittle requested an award of the following:
Attorney's Fees ($195.00 hourly rate x
Sales Tax on Attorney's Fees (6.5%)
TOTAL AWARD REQUESTED:
$ 12, 434.73
Commissioner does not take issue with Mr. Whittle's
entitlement to an award in general, nor with counsel's
hourly rate, nor with the sales tax or expenses part of the
request. Instead, the Commissioner seeks a reduction of Mr.
Whittle's attorney's fees to 35 hours, because
“nothing about the facts and issues in this matter
support a deviation from the average EAJA award, which is
20-40 hours.” The Commissioner also raises one specific
issue regarding the time entries.
Commissioner argues that 1.5 hours reviewing the file and
discussing with Mr. Whittle the in forma pauperis motion,
drafting the IFP paperwork, complaint and coversheet are not
compensable because work performed at the administrative
level is not compensable. This is true. But the IFP paperwork
and the complaint were not necessitated, required or
allowable at the administrative level. Those activities were
directly related to pursuing the administrative appeal to
this court. As such, they are allowable expenses.
the Commissioner's general objection, she argues the
total number of attorney hours expended is too much given the
experience of Mr. Whittle's attorney, the routine nature
of the issues raised, the fact that current counsel filed a
brief for Mr. Whittle to the Appeals Council below, and the
amount of time spent drafting the facts in the brief. The
Commissioner requests this court to reduce Mr. Whittle's
counsel's hours to 35 hours only.
Whittle argues his counsel's expertise should not be used
as a sword-or a shield-against him. Instead, the court should
be guided by whether the number of hours requested is
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 ...