Harderson v. Social Security Administration Commissioner
Filing
20
ORDER awarding attorney fees in the amount of $4,355.69. This amount should be paid in addition to, and not out of, any past due benefits which plaintiff may be awarded in the future. Further, any EAJA award by this Court should be made payable to plaintiff and not counsel. Signed by Honorable P. K. Holmes, III on March 14, 2016. (lw)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
SHEILA ANN HARDERSON
V.
PLAINTIFF
NO. 14-2152
CAROLYN W. COLVIN,
Acting Commissioner of the Social Security Administration
DEFENDANT
ORDER
Plaintiff, Sheila Ann Harderson, appealed the Commissioner’s denial of benefits to
the Court. On September 14, 2015, a Judgment was entered remanding this matter to the
Commissioner pursuant to sentence four of 42 U.S.C. §405(g). (Doc.15). Plaintiff now
moves for an award of $6,055.79 in attorney’s fees and costs under 28 U.S.C. §2412, the
Equal Access to Justice Act (hereinafter “EAJA”), requesting compensation for 32.3 attorney
hours of work performed before the Court in 2014 and 2015, at an hourly rate of $186.00 for
2014 and $187.00 for 2015, and for $23.29 in costs. Defendant filed a response to Plaintiff’s
request, with no objections to the hours and hourly amount sought, stating that an EAJA fee
made payable to Plaintiff may properly be mailed to Plaintiff’s attorney.
Pursuant to 28 U.S.C. §2412(d)(1)(A), the Court must award attorney’s fees to a
prevailing social security claimant unless the Commissioner’s position in denying benefits
was substantially justified.
The burden is on the Commissioner to show substantial
justification for the government’s denial of benefits. Jackson v. Bowen, 807 F.2d 127, 128
(8th Cir. 1986). Under Shalala v. Schaefer, 509 U.S. 292, 302 (1993), a social security
1
claimant who obtains a sentence-four judgment reversing the Commissioner's denial of
benefits and remanding the case for further proceedings is a prevailing party.
In determining a reasonable attorney’s fee, the Court will in each case consider the
following factors: time and labor required; the novelty and difficulty of questions involved;
the skill required to handle the problems presented; the preclusion of employment by the
attorney due to acceptance of the case; the customary fee; whether the fee is fixed or
contingent;
time limitations imposed by the client or the circumstances;
the amount
involved and the results obtained; the attorney’s experience, reputation and ability; the
“undesirability” of the case; the nature and length of the professional relationship with the
client; and awards in similar cases. Hensley v. Eckerhart, 461 U.S. 424, 430 (1983).
However, the EAJA is not designed to reimburse without limit.
Pierce v.
Underwood, 487 U.S. 552, 573 (1988). The Court can determine the reasonableness and
accuracy of a fee request, even in the absence of an objection by the Commissioner.
Clements v. Astrue, 2009 WL 4508480 (W.D. Ark. Dec. 1, 2009); see also Decker v.
Sullivan, 976 F.2d 456, 459 (8th Cir. 1992) (“Although the issue was not raised on appeal,
fairness to the parties requires an accurately calculated attorney’s fee award.”).
The EAJA further requires an attorney seeking fees to submit “an itemized
statement...stating the actual time expended and the rate at which fees and other expenses
were computed.” 28 U.S.C. § 2412(d)(1)(B). Attorneys seeking fees under federal feeshifting statutes such as the EAJA are required to present fee applications with
“contemporaneous time records of hours worked and rates claimed, plus a detailed
description of the subject matter of the work.” Id. Where documentation is inadequate, the
Court may reduce the award accordingly. Hensley, 461 U.S. at 433 (1983).
2
Plaintiff’s attorney requests an award under the EAJA at an hourly rate of $186.00 for
7.6 attorney hours spent in 2014 and $187.00 for 24.7 attorney hours spent in 2015, which
she asserts were devoted to the representation of Plaintiff in this Court. The party seeking
attorney fees bears the burden of proving that the claimed fees are reasonable. Hensley, 461
U.S. at 437. Attorney fees may not be awarded in excess of $125.00 per hour - the maximum
statutory rate under §2412(d)(2)(A) - unless the court finds that an increase in the cost of
living or a special factor such as the limited availability of qualified attorneys justifies a
higher fee. 28 U.S.C. § 2412(d)(2)(A). In Johnson v. Sullivan, 919 F.2d 503 (8th Cir. 1990),
the Court stated that the hourly rate may be increased when there is “uncontested proof of an
increase in the cost of living sufficient to justify hourly attorney’s fees of more than [the
maximum statutory hourly rate],” such as a copy of the Consumer Price Index (CPI).
Plaintiff’s counsel submitted a CPI-Urban Index, but the CPI-South Index supports an award
based upon an hourly rate of $186.00 in 2014 and $187.00 in 2015. 1 See Johnson, 919 F.2d
at 505.
The Court will next address the number of hours requested by Plaintiff’s counsel.
I.
Clerical Activities:
“‘Purely clerical activities, regardless of who performs them, are considered overhead
and are not compensable as EAJA attorney fees.’” McCarty v. Astrue, No. 4:11-CV-00022BRW, 2012 WL 2571229 at *1 (E.D. Ark. July 2, 2012)(quoting Gough v. Apfel, 133
F.Supp. 2d 878, 881 (W.D. Va. 2001) and Missouri v. Jenkins, 491 U.S. 274, 288 n. 10
1
Per Amended General Order 39, the allowable rate for each year is as follows, and for simplicity sake, the figure is rounded
to the nearest dollar:
2014 - 227.082 x 125 divided by 152.4 (March 1996 CPI -South) = $186.25 hour-$186.00
2015 - 228.451 x 125 divided by 152.4 (March 1996 CPI-South) = $187.38/hour - $187.00
3
(1989)); Granville House, Inc. v. Department of HEW, 813 F.2d 881, 884 (8th Cir.
1987)(work which could have been completed by support staff is not compensable under the
EAJA).
The Court finds the following entries, which total .65 hours to be clerical in nature:
7/7/14 Receipt/Review NEF File Stamped Complaint; Receipt/Review NEF
providing File Stamped IFP Motion; Receipt/Review NEF providing File
Stamped Civil Cover Sheet
.15
7/21/14 Receipt/Review file Stamped Complaint; IFP, Civil Cover Sheet, and
Summons for Service (mailed)
.15
8/21/14 Receipt/Review return receipt showing service on US Attorney,
Commissioner, and Attorney General
.30
7/24/15 Receipt/Review NEF providing file stamped Appeal Brief
.05
See McCarty, 2012 WL 2571229 at *1 (classifying review of ECFs as clerical in nature).
Therefore, Ms. Gibbons hours in 2014 are reduced by .60 hours, and her hours in 2015 are
reduced by .05 hours.
II.
Preparation of the Brief:
Plaintiff’s attorney seeks reimbursement for 23.45 hours spent in 2014 (1 hour) and
2015 (22.45 hours) reviewing the 533 page transcript and preparing the appeal brief. As was
found in McCarty, based on the Court’s experience, “‘the usual time claimed in cases
involving issues that are not particularly complex or novel[] is fifteen (15) to twenty (20
hours.’” McCarty, 2013 WL 2571229 at *3 (quoting Kramer v. Apfel, 57 F.Supp.2d 774, 775
(S.D. Iowa, 1999). Plaintiff’s counsel is an experienced social security attorney, and
reviewing the 533 page transcript and preparing the appeal brief should not have taken her
4
more than 15 hours. The Court will therefore deduct a total of 8.45 hours for time spent in
preparation of the brief (1 hour spent in 2014 and 7.45 hours spent in 2015).
Plaintiff’s attorney seeks $23.29 for postage. Postage fees are not classified as costs
under §1920, and are, therefore, recoverable under the EAJA as expenses. Accordingly, the
Court finds that $23.29 is recoverable as an expense.
Based upon the foregoing, the Court finds that Plaintiff’s counsel should be awarded
an attorney’s fee under the EAJA for: 6 attorney hours for work performed in 2014 (7.6
hours less 1.60 hour) and 17.2 attorney hours for work performed in 2015 (24.7 hours less
7.5 hours) at an hourly rate of $186.00 for 2014 and $187.00 for 2015, plus $23.29 in
expenses, for a total attorney’s fee award of $4,355.69. This amount should be paid in
addition to, and not out of, any past due benefits which Plaintiff may be awarded in the
future. Based upon the holding in Astrue v. Ratliff, 130 S.Ct. 2521 (2010), the EAJA award
should be paid directly to Plaintiff.
The parties are reminded that the award herein under the EAJA will be taken into
account at such time as a reasonable fee is determined pursuant to 42 U.S.C. § 406, in order
to prevent double recovery by counsel for the Plaintiff.
DATED this 14th day of March, 2016.
/s/P.K. Holmes,III
P. K. HOLMES, III
CHIEF U.S. DISTRICT JUDGE
5
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?