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Whittle v. Berryhill

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

July 2, 2019

SEAN K. WHITTLE, Plaintiff,




         Following 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.


         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. 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.

         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. Whittle requested an award of the following:

Attorney's Fees ($195.00 hourly rate x 57.85[1] hours)

$11, 280.75

Sales Tax on Attorney's Fees (6.5%)




Filing Fee



$ 12, 434.73

         The 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.

         The 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.

         As to 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.

         Mr. 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 reasonable.

         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 ...

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