United States District Court, D. Nebraska
ALLEN M. NOVOTNY, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security; Defendant.
MEMORANDUM AND ORDER
F. Bataillon Senior United States District Judge.
matter is before the court on plaintiff's motion for
attorneys' fees pursuant to the Equal Access to Justice
Act (EAJA), 28 U.S.C. § 2412(d), Filing No. 25.
Plaintiff initially filed this suit as an action for judicial
review of a final decision of the Commissioner of the Social
Security Administration (“Commissioner”) finding
that plaintiff was not disabled pursuant to 42 U.S.C.
§§ 401-434. This court reversed the Commissioner
and found plaintiff disabled within the meaning of the Act.
Filing No. 24.
requests an award of $9, 965.54 in fees, after offset (if
any), and $400.00 as reimbursement for the filing fee from
the Judgment Fund. This amount consists of a request for 5.9
hours of attorney work at a rate of $192.68 in 2016
(performed by Thomas Krause and Mike Haller); 24.6 hours of
attorney work at a rate of $175.00 in 2017 (performed by Wes
Kappelman); and 23 hours of attorney work at a rate of
$196.68 in 2017 (performed by Thomas Krause and Mike Haller)
(Filing No. 25-1, p. 2). Plaintiff also requests $400 in
costs as reimbursement for the filing fee. Id.
EAJA provides for attorney fees if: “(1) the person is
a prevailing party; (2) the individual's net worth did
not exceed $2, 000, 000 at the time the civil action was
filed; and (3) the fees and expenses were ‘incurred by
that party in [the] civil action' in which it
prevailed.” United States S.E.C. v. Zahareas,
374 F.3d 624, 630 (8th Cir. 2004) (quoting 28 U.S.C. §
2412(d)(1)(A)-(2)(B)). The fees awarded must be reasonable. A
reasonable fee under 28 U.S.C. § 2412 does not exceed
“$125 per hour unless the court determines that an
increase in the cost of living or a special factor, such as
the limited availability of qualified attorneys for the
proceedings involved, justifies a higher fee.” 28
U.S.C. § 2412(D)(2)(A)(ii).
for a successful Social Security claimant to collect attorney
fees, the Commissioner's position must lack substantial
justification. Substantial justification occurs when the
Commissioner's position has a clearly reasonable basis in
law and fact. The Commissioner bears the burden of proving
that her position is substantially justified. Goad v.
Barnhart, 398 F.3d 1021, 1025 (8th Cir. 2005). In this
instance, the Commissioner does not argue that her position
was substantially justified.
Commissioner does not object to an award of attorney fees,
but she does object to the amount of attorney fees requested.
Filing No. 26. The Commissioner lists a number of
“tenths” of an hour wherein she disagrees with
the requested fees. Filing No. 26, at 2-3. First, she
contends that plaintiff cannot be compensated for work
performed at the administrative level prior to the filing of
the Complaint. See e.g., Melkonyan v. Sullivan, 501
U.S. 89, 94, 97 (1991); Cornella v. Schweiker, 728
F.2d 978, 988 (8th Cir. 1984). The Commissioner also contends
that some of the supporting documents are not sufficient
enough to support a request for fees. Filing No. 26 at 4-5.
Last, the Commissioner contends that some of the listed tasks
do not require the skills of an attorney. Id. at
5-6. The Commissioner requests a reduction of 18.2 hours for
court finds that the plaintiff is entitled to attorneys'
fees under the EAJA. The plaintiff is the prevailing party.
Additionally, plaintiff's net worth did not exceed $2,
000, 000 at the time the civil action was filed. The
plaintiff requests attorneys' fees totaling $9, 965.44
for 53.5 hours of work. The hourly rate requested for
attorneys Mike Haller and Tom Krause is $192.68 in 2016 and
$196.68 in 2017; and for Wes Kappelman is $175.00. Filing No.
25-1. The plaintiff first bases the request for this hourly
fee on the fact that the cost of leaving has increased
substantially since 1996. Filing No. 25-1, ¶ 7. An
increase for the cost of living is generally allowed.
Johnson v. Sullivan, 919 F.2d 503, 508-10 (8th Cir.
1990). The court finds that the increase in cost of living
justifies a fee higher than $125 an hour and that the rates
requested by the plaintiff are reasonable. The court further
finds that counsel are seasoned social security disability
attorneys who generally charge $225.00 - $250.00 per hour for
this work, 95% of which is for social security cases. Filing
No. 25-1, p.3, ¶ 3. The court has carefully reviewed the
hours submitted and finds them to be reasonable in all
respects. Thus, the court concludes that both the amount
requested and the hours expended are reasonable.
court also finds that the arguments of the Commissioner are
without merit. The hours requested by the plaintiff do not in
fact include administrative costs. Further, the supporting
documents are more than sufficient for purposes of making a
fee award in this case. Last, the tasks listed by counsel for
the plaintiff are generally those required by an attorney.
these reasons, the court will grant the plaintiff's
motion for attorneys' fees.
IT IS ORDERED that:
plaintiff's motion for attorneys' fees, Filing No.
25, is granted.
Pursuant to the Equal Access to Justice Act, attorneys'
fees in the amount of $9, 965.54 are payable to Mr.
Novotny's attorneys, less any offset to ...