UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

FORT WAYNE DIVISION

MIKEAL COLE, )

)

Plaintiff )

)

v. ) CAUSE NO. 1:14-CV-198 RLM

)

NANCY A. BERRYHILL,1)

Acting Commissioner of )

Social Security, )

)

Defendant )

OPINION AND ORDER

This cause is before the court on Mikeal Cole’s motion for attorney fees

under the Equal Access to Justice Act, 28 U.S.C. § 2412, following the court’s

entry of final judgment remanding the case to the Commissioner of Social Security

for further proceedings. Mr. Cole’s attorneys, Jason Rodman and Randal Forbes,

request an award of fees in the amount of $24,115.56. The Commissioner objects

to his request.

The EAJA isn’t “an automatic fee-shifting statute,” so merely prevailing

against the Commissioner doesn't entitle a party to an award of fees. Potdar v.

Holder, 585 F.3d 317, 319 (7th Cir.2009). The EAJA allows a district court to

award attorney’s fees “where (1) the claimant was a ‘prevailing party,’ (2) the

government's position was not ‘substantially justified,’ (3) no special

1 Nancy A. Berryhill, the Acting Commissioner of Social Security, has been substituted

as the named defendant, pursuant to Fed. R. Civ. P. 25(d)(1).
circumstances make an award unjust, and (4) the claimant filed a timely and

complete application with the district court.” Stewart v. Astrue, 561 F.3d 679,

683–684 (7th Cir. 2009).

Mr. Cole filed a timely petition supported by an itemized statement and is

a “prevailing party” and there are no “special circumstances” in this case that

would make an award of fees and costs unjust. Whether the Commissioner's

position was substantially justified, is subject to dispute. 

The Commissioner bears the burden of establishing that her position was

substantially justified overall. Conrad v. Barnhart, 434 F.3d 987, 990 (7th

Cir.2006). “[A] position can be justified even though it is not correct, and . . . can

be substantially (i.e., for the most part) justified if a reasonable person could think

it correct, that is if it has a reasonable basis in law and fact.” Pierce v. Underwood,

487 U.S. 552, 566 n.2 (1988); see also Stewart v. Astrue, 561 F.3d 679, 683 (7th

Cir.2009); Golembiewski v. Barnhart, 382 F.3d 721, 724 (7th Cir. 2004). “EAJA

fees may be awarded if either the government’s pre-litigation conduct [e.g., the

ALJ’s decision] or its litigation position are not substantially justified.”

Golembiewski v. Barnhart, 382 F.3d at 724 (quoting Marcus v. Shalala, 17 F.3d

1033, 1036 (7th Cir. 1994)).

This court believed that the position the Commissioner took before and

during litigation was reasonably based on the law and the facts that were

presented to the ALJ, and so affirmed his decision to deny benefits. But the court

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of appeals disagreed, and this court is bound by its decision. See United States

v. Thouvenot, Wade & Moerschen, Inc., 596 F.3d 378, 384 (7th Cir. 2010) (“[I]f it

is apparent from our opinion that we think the government lacked a substantial

justification for its position, though the judge had thought it not only substantially

justified but correct, he must bow.”). 

The only issue remaining is whether the hours expended and hourly rate

requested are reasonable. The EAJA permits recovery of attorney fees based on

“prevailing market rates,” but not in excess of $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). 

Mr. Rodman and Mr. Forbes submitted an itemized statement, affidavits,

and other documentation (including the Bureau of Labor Statistics’ Consumer

Price Index) indicating that they expended 126.2 hours on Mr. Cole’s case and

that a reasonable hourly rate for their services would be $191.09 based on

inflation, a rise in the cost of living, and past fee awards in this circuit. 

Counsels’ use of the Consumer Price Index to calculate an appropriate

inflation adjustment is reasonable, as is the hourly rate they request, see

Tchemkou v. Mukasey, 517 F.3d 506, 512 (7th Cir. 2008) (“[G]iven the passage of

time since the establishment of the hourly rate, a cost-of-living adjustment is

warranted.”). But the Commissioner contends that the number of hours billed is

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excessive, and argues that the 25 hours expended on writing the appellate brief

and another 25 hours to re-review the record and write an appellate response brief

demonstrate that Mr. Cole’s attorneys didn’t exercise proper billing judgment. The

Commissioner offers nothing further to support her argument—no suggestion of

how many hours should have been expended on the case or how many hours

would have been reasonable—and, as a result, hasn’t adequately demonstrated

why those hours should be discounted.

The hours expended and fee requested are significant; but the court can’t

find on the basis of the record before me that they were unnecessary or

unreasonable, in light of the results obtained. See, e.g., Willano v. Astrue, 2009

WL 1803131, *4 (N.D. Ind. 2009) (awarding fees for 180.1 hours of attorney time

amounting to $31,952.82); Getch v. Astrue, 2009 WL 89667 (N.D. Ind. 2009)

(awarding fees for 169.2 hours of attorney time amounting to $28,680.35); Smith

ex rel. Smith v. Apfel, 2001 WL 199505 (N.D.Ill.2001) ($32,949.63 awarded);

DeFrancesco on Behalf of DeFrancesco v. Sullican, 803 F.Supp. 1332

(N.D.Ill.1992) ($28,647.60 awarded); Rohan v. Apfel, 1997 WL 803867

(N.D.Ill.1997) ($24,834.00 awarded in 1997).

Accordingly, the court GRANTED Mr. Cole’s motion for an award of fees and

cost under the EAJA in the total amount of $24,115.56 [Doc. No. 45].

SO ORDERED.

ENTERED: October 16, 2017 

4
 /s/ Robert L. Miller, Jr. 

Judge

United States District Court

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