Theis v. Social Security Administration
Filing
18
OPINION AND ORDER granting as reflected 15 MOTION for Attorney Fees & Expenses filed by Rebecca Diane Theis. The amount of $6,255.88 is awarded as fees & expenses under EAJA. After Plaintiff's federal debt, if any, is substracted, the C ourt directs that the award be made payable to the Plaintiff, in care of her attorney, Robert P. Young, & mailed to Mr. Young, pursuant to the Commissioner's standard method of issuing payment. Signed by Chief Judge J. Leon Holmes on 11/2/2011. (jct)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
JONESBORO DIVISION
REBECCA DIANE THEIS
v.
PLAINTIFF
No. 3:10CV00193 JLH
MICHAEL J. ASTRUE, Commissioner,
Social Security Administration
DEFENDANT
OPINION AND ORDER
This is a Social Security disability appeal in which the Court found that the administrative
law judge committed error and remanded under sentence four of 42 U.S.C. § 405(g). The plaintiff
has filed a petition for attorney’s fees pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412.
She requests a fee in the amount of $8,411.77, calculated on the basis of 46.25 hours multiplied by
$181.88 per hour. She bases that hourly rate on the statutory maximum of $125 per hour adjusted
by dividing the Consumer Price Index–All Urban Consumers’ rate for August of 2011 by the cost
of living for March of 1996 and multiplying that figure by 125. She also requests payment of $17.13
in expenses.
The Commissioner has responded and concedes that the plaintiff is entitled to reimbursement
of attorney’s fees under the Equal Access to Justice Act but contends that the application is
excessive and poorly documented. Specifically, the Commissioner objects to fifteen telephone calls
each of which was billed at 0.5 hours for a total of 7.5 hours for attorney time to talk on the
telephone regarding a Social Security disability case that was litigated entirely in writing. The
Commissioner also objects to duplicate requests for a total of 2.0 hours of attorney time for
consultation on October 9, 2010; October 12, 2010; and January 21, 2011. The Commissioner
further objects to reimbursement for the 1.5 hours spent by the lawyer to draft unspecified
documents on October 7, 2010; October 12, 2010; and October 21, 2010. The Commissioner
contends that the proposed hourly rate is excessive and argues for an hourly rate of $175.06 for
allowable hours spent in 2010 and $179.51 for allowable hours spent in 2011. Like the plaintiff, the
Commissioner relies upon the Consumer Price Index but contends that the 2010 annual rate and
2011 mid-year rate should be used because they cover the time period during which the plaintiff’s
attorney performed the work for which the plaintiff is seeking reimbursement.
In reply, the petitioner has submitted an addendum that explains in more detail entries that
were described only generally in the initial submission. The addendum specifies that each of the
telephone calls was a phone call with the client and each consultation was a consultation with the
client. The addendum also specifies the documents that were drafted on each of the dates that
previously had been described only as “drafted document.” The first of these entries—a letter to the
Social Security Administration—was billed at 0.5 hours on April 7, 2010, but the addendum notes
that entry should not have been included. No award will be made for that entry.
Under the Equal Access to Justice Act, a prevailing social security claimant is entitled to an
award of reasonable attorney’s fees and expenses unless the Commissioner’s position in denying
benefits was “substantially justified” or special circumstances make an award unjust. 28 U.S.C.
§ 2412(d)(1)(A). In this case, the Commissioner concedes that the plaintiff is entitled to an award
of attorney’s fees pursuant to the Act. See Shalala v. Schaefer, 509 U.S. 292, 300-02, 113 S. Ct.
2625, 2631-32, 125 L. Ed. 2d 239 (1993) (holding that a claimant who wins a sentence-four remand
order and judgment is a prevailing party entitled to Equal Access to Justice Act fees).
Attorney’s fees may not be awarded in excess of $125.00 per hour—the maximum statutory
rate under the Act—unless the Court finds that an increase in the cost of living or a special factor
justifies a higher fee. 28 U.S.C. § 2412(d)(2)(A). The decision to increase the hourly rate is not
2
automatic and remains at the discretion of the district court. McNulty v. Sullivan, 886 F.2d 1074,
1074 (8th Cir. 1989); see also Hickey v. Secretary of HHS, 923 F.2d 585, 586 (8th Cir. 1991) (In
reviewing a request for attorney’s fees, “[t]he district court [is] ‘in the best position to evaluate
counsel’s services and fee request, particularly when the court has had the opportunity to observe
first-hand counsel’s representation on the substantive aspects of the disability claim.’ ”) (quoting
Cotter v. Bowen, 879 F.2d 359, 361 (8th Cir. 1989), abrogated on other grounds by Gisbrecht v.
Barnhart, 535 U.S. 789, 122 S. Ct. 1817, 152 L. Ed. 2d 996 (2002)). However, in Johnson v.
Sullivan, 919 F.2d 503, 505 (8th Cir. 1990), the Eight Circuit held where “an EAJA petitioner
presents uncontested proof of an increase in the cost of living sufficient to justify hourly attorney’s
fees of more than $75 per hour, enhanced fees should be awarded.”1
The plaintiff has offered uncontested proof of an increase in the cost of living in the Eastern
District of Arkansas sufficient to justify an hourly rate in excess of $125.00 per hour. Johnson, 919
F.2d at 504 (“We believe that the Consumer Price Index constitutes ‘proper proof’ of the increased
cost of living since the EAJA’s enactment and justifies an award of attorney’s fees greater than $75
per hour in these cases.”). However, the Court rejects the notion that attorney’s fees should be
determined using an hourly rate calculated simply by multiplying $125 per hour by a number
derived from the Consumer Price Index. Although the Consumer Price Index provides proof
warranting an enhanced fee award, the Court’s discretion is not bound by the exact numerical values
of the rates provided in the Index. See King v. Astrue, No. 08-2068, 2010 WL 143785, at *3 (W.D.
Ark. Jan. 11, 2010) (rejecting the plaintiff’s argument that the Consumer Price Index rate should be
1
In 1996, Congress increased the statutory ceiling for Equal Access to Justice Act fee
awards to $125.00 per hour. See 28 U.S.C. § 2412(d)(2)(A).
3
automatically awarded). That type of calculation results in an hourly rate of some anomalous
number of dollars and cents, such as the hourly rates for which the parties here advocate—$181.88,
$179.51, and $175.06. Attorney’s fees are not determined by using hourly rates of such anomalous
dollar and cents amounts. Congress intended that plaintiffs receive reasonable fee awards pursuant
to the Equal Access to Justice Act, not attorney’s fees based on the kinds of irregular hourly rates
for which the parties argue. An attorney’s fee is an estimate of what is a reasonable fee for the
service rendered considering a number of relevant factors such as the time and labor involved, the
skill needed to provide the service properly, the fee customarily charged for that service in the
locality, the experience and ability of the attorney providing the service, and whether the fee is fixed
or contingent. See Ark. Rules of Prof’l Conduct 1.5. Consideration of those factors does not result
in the type of precise but anomalous hourly rate for which the parties argue here.
The Eighth Circuit has held that, “[u]nder ordinary circumstances . . . the cost of living
affects each litigant within a judicial district to the same degree” and, consequently, enhanced hourly
fee rates based on cost-of-living increases should be consistent in each case, “rather than producing
disparate fee awards from each court within the district or from different districts within this circuit.”
Johnson, 919 F.2d at 505. In light of common billing practices among attorneys, and to enable the
courts in this district to treat fee requests consistently, the Court has decided that the plaintiff’s
attorney’s fee award should be determined calculated based on an hourly rate in a round figure—the
kind of figure that commonly forms the basis for determining an attorney’s fee. Taking into account
the Consumer Price Index, as well as the Equal Access to Justice Act fee awards from past cases
within Arkansas, the Court believes that an hourly rate of $175.00 will reasonably compensate the
plaintiff’s attorney for the work performed in this case. See, e.g., Ware v. Astrue, No. 4:08CV02908,
4
2010 WL 582580 (E.D. Ark. Feb. 16, 2010) (awarding attorney’s fees at an hourly rate of $169.00
for 2008 and 2009).
In addition, the Court agrees with the Commissioner that entries that were originally
described merely as “telephone call,” “received and reviewed documents,” and “consultation,” are
troublesome inasmuch as every one of those entries, except for two “consultation” entries, is billed
at 0.5 hours. The fee application contains 49 entries, 39 of which are recorded as taking 0.5 hours.
The other 10 entries are all greater than 0.5 hours. No entry records time of less than 0.5 hours. It
is not reasonable to believe that every telephone call and the review of every document, except the
briefs and medical records, consumed 0.5 hours. While thirty minutes may be needed to review
some documents, that amount of time seems excessive for receiving and reviewing a document in
this type of case, where the only large documents would be medical records and briefs, the time for
review of which is billed separately. Likewise, while thirty minutes may be needed for some
telephone calls, that amount of time seems excessive in this case, where the primary work consisted
of reviewing a record and writing briefs, and where the representation began with a client
consultation of 1.5 hours followed two subsequent client consultations of .75 hours each. The Court
notes that eight telephone calls were billed for a total of four hours after the final brief was filed in
this case. Finding no adequate explanation for how these tasks all could have taken 0.5 hours, the
Court has decided that the best course is to reduce the entries for “telephone call,” “received and
reviewed documents,” and “consultation” that were entered at 0.5 hours to 0.2 hours each.
The fee award will be based on an hourly rate of $175.00 and the time entries submitted by
the plaintiff, adjusted as follows:
5
DATE
2/17/10
4/1/10
4/7/10
4/28/10
5/1/10
8/1/10
8/10/10
8/16/10
8/19/10
9/5/10
9/17/10
9/21/10
9/27/10
10/7/10
10/9/10
10/12/10
10/12/10
10/12/10
10/21/10
11/8/10
11/8/10
11/30/10
12/1/10
1/3/11
1/3/11
1/4/11
1/5/11
1/6/11
1/7/11
1/8/11
1/19/11
1/21/11
1/31/11
2/17/11
2/19/11
2/21/11
DESCRIPTION OF
WORK INVOLVED
ORIGINAL
TIME
REVISED
TIME
Initial consultation.
Consultation; reviewed documents.
Drafted, reviewed and signed letter
(secretarial time not included).
Telephone call.
Received and reviewed documents.
Received and reviewed document.
Drafted Complaint and other court documents.
Drafted, reviewed and signed letter
(secretarial time not included).
Received and reviewed document.
Received and reviewed document.
Received and reviewed Order.
Reviewed file; Drafted, reviewed and signed
letter (secretarial time not included).
Drafted, reviewed and signed letters
(secretarial time not included).
Drafted document.
Consultation.
Drafted document.
Consultation; Drafted, reviewed and signed
letter (secretarial time not included).
Received and reviewed document; Drafted,
reviewed and signed letter (secretarial time
not included).
Drafted document.
Telephone call.
Reviewed, scanned, and uploaded court
document.
Received and reviewed Answer.
Received and reviewed document.
Telephone call.
Reviewed documents and medical records.
Reviewed documents and medical records.
Drafted Brief.
Drafted Brief.
Drafted Brief and research.
Drafted, reviewed and signed letter
(secretarial time not included).
Telephone call.
Consultation.
Telephone call.
Received and reviewed document.
Received and reviewed letter.
Telephone call.
1.5
0.5
1.5
0.2
0.5
0.5
0.5
0.5
0.75
0.0
0.2
0.2
0.2
0.75
0.5
0.5
0.5
0.5
0.5
0.2
0.2
0.2
0.5
0.5
0.5
0.5
0.5
0.5
0.5
0.2
0.2
0.5
0.75
0.75
0.5
0.5
0.5
0.2
0.2
0.2
0.5
0.5
0.5
0.5
3.75
2.5
5.75
3.25
6.5
0.2
0.2
0.2
0.2
3.75
2.5
5.75
3.25
6.5
0.5
0.5
0.75
0.5
0.5
0.5
0.5
0.5
0.2
0.75
0.2
0.2
0.2
0.2
6
2/22/11
2/23/11
2/25/11
3/3/11
3/28/11
4/15/11
5/10/11
5/12/11
5/16/11
5/18/11
6/27/11
7/1/11
7/7/11
Received and reviewed document.
Telephone call.
Reviewed Defendant’s Brief.
Telephone call.
Telephone call.
Telephone call.
Telephone call.
Telephone call.
Telephone call.
Telephone call.
Telephone call.
Received and reviewed document.
Drafted, reviewed and signed letter
(secretarial time not included).
TOTAL TIME:
TOTAL FEE based on 35.65 hours x $175.00 =
EXPENSES
TOTAL REIMBURSEMENT
0.5
0.5
0.75
0.5
0.5
0.5
0.5
0.5
0.5
0.5
0.5
0.5
0.2
0.2
0.75
0.2
0.2
0.2
0.2
0.2
0.2
0.2
0.2
0.2
0.5
46.25
0.5
35.65
$6,238.75
17.13
$6,255.88
Recently, the Supreme Court held that any Equal Access to Justice Act award should be
made payable to the litigant, not her attorney, and that the award is subject to offset for any debt
owed to the government by the litigant. Astrue v. Ratliff, --- U.S. ---, 130 S. Ct. 2521, 177 L. Ed.
2d 91 (2010). Therefore, after the plaintiff’s federal debt, if any, is subtracted, the Court directs that
the above award be made payable to the plaintiff, in care of her attorney, Robert P. Young, and
mailed to Mr. Young, pursuant to the Commissioner’s standard method of issuing payment.
IT IS SO ORDERED this 2nd day of November, 2011.
J. LEON HOLMES
UNITED STATES DISTRICT JUDGE
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