United States District Court, E.D. Michigan, Southern Division
ORDER REGARDING PLAINTIFF'S APPLICATION FOR
ATTORNEY FEES UNDER THE EQUAL ACCESS TO JUSTICE ACT
Victoria A. Roberts United States District Judge.
the Court is Plaintiff's Application for Attorney Fees
Under the Equal Access to Justice Act [Doc 23]. The
application is fully briefed.
FACTUAL AND PROCEDURAL BACKGROUND
September 4, 2012, Plaintiff Iva T. Brusch
(“Brusch”) filed applications for Social Security
Disability Insurance Benefits (“DIB”) and
Supplemental Security Income (“SSI”) benefits
under sections 216(I) and 223, and sections 1611 and 1614 of
the Social Security Act respectively, 42 U.S.C. Sections
416(I), 423, 1381(a) and 1382(a). Her applications were
denied. Brusch then filed a request for a hearing and
testified before an administrative law judge
(“ALJ”). The ALJ denied her claims for disability
benefits. The Appeals Council denied review and a final
administrative decision by the Commissioner was rendered.
then filed a Complaint for Judicial Review pursuant to 42
U.S.C. § 405(g). Defendant Carolyn W. Colvin, Acting
Commissioner of Social Security (“Commissioner”)
filed a Stipulated Motion for Remand. This court remanded the
case to the Social Security Agency.
filed an application for $9, 799.40 in attorneys' fees
under the Equal Access to Justice Act (“EAJA”),
28 U.S.C. § 2412, for work performed in 2015 and 2016:
51.2 attorney hours at a rate of $184.50 per hour and 3.53
paralegal hours at $100 per hour.
Commissioner responded and agreed that Brusch is entitled to
attorney's fees under EAJA, but objects to the requested
amount for the following reasons: (1) fees cannot be awarded
for the clerical work of paralegals, and 2) the
attorney's reported hours are unreasonably excessive
because (a) the Sixth Circuit has found 20-40 hours to be the
norm for Social Security disability cases; (b) and neither
the length of the administrative transcript nor the arguments
contained in Brusch's motion for summary judgment
justifies a request for more.
Reply, Brusch agreed to eliminate the clerical work and
reduce the paralegal hours to 2.52. However, she asserts that
the attorney hours are not unreasonably excessive because of
the length of the transcript and the attorneys' newness
to the case. Brusch now requests 52.7 attorney hours, to
account for time spent on the reply, and 2.52 paralegal
otherwise prohibited by statute, the EAJA allows a court to
award reasonable attorneys' fees and expenses in civil
cases brought against the United States, its agencies, or its
officials acting in their official capacity. 28 U.S.C. §
2412(b). An applicant can recover under EAJA if (1) the
applicant is the prevailing party, (2) the government's
position is without substantial justification, and (3) no
special circumstances warrant denying relief. DeLong v.
Comm'r of Soc. Sec., 748 F.3d 723, 725 (6th Cir.
2014) (citing Marshall v. Comm'r of Soc. Sec.,
444 F.3d 837, 840 (6th Cir. 2006)). The attorney fee awarded
cannot exceed $125 per hour, except when the Court determines
that a higher fee is justified by a special factor like an
increase in the cost of living. Id. §
contends that due to cost of living increases, the court
should set the hourly rate at $184.50. The Commissioner does
not disagree with the rate, only the total attorney hours
court finds that a party is eligible for fees and expenses
under EAJA, it uses the lodestar amount to calculate a
reasonable attorney fees award. Minor v. Comm'r of
Soc. Sec., 826 F.3d 878, 881 (6th Cir. 2016) (citing
Comm'r, I.N.S. v. Jean, 496 U.S. 154, 160
(1990)).) The lodestar amount is the number of hours billed
multiplied by a reasonable hourly rate. Minor, 826
F.3d at 881 (6th Cir. 2016)(citing Gonter v. Hunt Valve
Co., 510 F.3d 610, 616 (6th Cir. 2007)).
EAJA does not limit the amount of attorney's hours and
only requires the attorney to submit all hours in an itemized
statement. 28 U.S.C. § 2412(d)(1)(B). However, the court
need not accept the hours asserted by the attorney; it can
reduce the amount for “duplication, padding or
frivolous claims.” Glass v. Sec'y of Health
& Human Servs., 822 F.2d 19, 21 (6th Cir.
1987)(citing Northcross v. Board of Education of Memphis
City Schools, 611 F.2d 624, 636 (6th Cir. 1980));
See also Hensley v. Eckerhart, 461 U.S. 424, 433
(fees should exclude excessive, redundant, or inadequately
documented time). If the court does reject the attorney's
submitted hours, it must specify why. Glass, 822
F.2d at 21.
Commissioner asserts that the Sixth Circuit, in
Glass, found a range of 20-40attorney hours to
be a reasonable amount for Social Security disability cases.
The Commissioner argues ...