Coulter v. Social Security Administration Commissioner

Filing 18

MEMORANDUM OPINION AND ORDER awarding attorney fees in the amount of $6,143.04. Signed by Honorable P. K. Holmes, III on March 18, 2016. (lw)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION

RHONDA COULTER

PLAINTIFF

v.

CIVIL NO. 2:14-cv-2244-PKH

CAROLYN W. COLVIN, Commissioner
Social Security Administration

DEFENDANT

MEMORANDUM OPINION AND ORDER
Pending now before this Court is Plaintiff’s Motion for Attorney Fees Under the Equal
Access to Justice Act (“EAJA”). (ECF Nos. 14, 15) The Defendant filed a response voicing
objections, and the Plaintiff has replied. (ECF Nos. 16, 17) The matter is now ripe for resolution.
I.

Background:
On January 25, 2016, Plaintiff filed a motion for attorney’s fees and costs under 28

U.S.C. § 2412, the Equal Access to Justice Act (hereinafter “EAJA”), requesting $6,304.24
representing a total of 5.00 attorney hours in 2014 at an hourly rate of $186.25, 28.55 attorney
hours for work performed in 2015 at an hourly rate of $187.38 and $23.29 in postage expense.
(ECF No. 14) On December 22, 2015, the Defendant filed a response objecting to the number
of hours Plaintiff’s counsel is requesting. (ECF No. 16)
II.

Applicable Law:
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).

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An award of attorney’s fees under the EAJA is appropriate even though, at the conclusion
of the case, Plaintiff’s attorney may be authorized to charge and collect a fee pursuant to 42
U.S.C. § 406(b)(1). Recovery of attorney’s fees under both the EAJA and 42 U.S.C. § 406(b)(1)
was specifically allowed when Congress amended the EAJA in 1985. Gisbrecht v. Barnhart, 535
U.S. 789, 796, 122 S.Ct. 1817, 1822, 152 L.Ed.2d 996 (2002), citing Pub.L. 99-80, § 3, 99 Stat.
186 (1985).
“To permit a fee award under the EAJA, assuming, of course, that
the necessary standard is met, in addition to that allowed by the
district court out of a claimant’s past-due benefits does no more
than reimburse the claimant for his or her expenses and results in
no windfall for the attorney.”
Meyers v. Heckler, 625 F.Supp. 228, 231 (S.D.Ohio 1985). Furthermore, awarding fees under
both acts facilitates the purposes of the EAJA, which is to shift to the United States the
prevailing party’s litigation expenses incurred while contesting unreasonable government action.
Id. See also, Cornella v. Schweiker, 728 F.2d 978 (8th Cir.1984).
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 fee-shifting 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 v.
Eckerhart, 461 U.S. 424, 433 (1983).
The EAJA is not designed to reimburse without limit. Pierce v. Underwood, 487 U.S.
552, 573 (1988). In determining a reasonable attorney’s fee, the court will in each case consider
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the following factors: time and labor required; the difficulty of questions involved; the skill
required to handle the problems presented; the attorney’s experience, ability, and reputation; the
benefits resulting to the client from the services; the customary fee for similar services; the
contingency or certainty of compensation; the results obtained; and, the amount involved. Allen
v. Heckler, 588 F.Supp. 1247 (W.D.N.Y. 1984). The 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 firsthand counsel’s representation on the substantive aspects of the disability claim.”
Hickey v. Secretary of HHS, 923 F.2d 585, 586 (8th Cir. 1991) (quoting Cotter v. Bowen, 879
F.2d 359, 361 (8th Cir. 1989)).
The Contract with America Advancement Act of 1996, passed on March 29, 1996,
amended the EAJA and increased the statutory ceiling for the EAJA fee awards from $75.00 to
$125.00 per hour. See 28 U.S.C. § 2412(d)(2)(A). Attorney’s 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). The decision to increase the hourly
rate is not automatic and remains at the discretion of the district court. McNulty v. Sullivan, 886
F.2d 1074 (8th Cir. 1989). 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 $75.00 an hour,” such as a copy
of the Consumer Price Index.

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III.

Discussion:
In the present action, Plaintiff’s case was remanded by this Court pursuant to sentence

four of 42 U.S.C. § 405(g). (ECF No. 13) Defendant does not contest Plaintiff’s claim that she
is the prevailing party and does not oppose her application for fees under the EAJA. (ECF No.
16) The Court construes this lack of opposition to this application as an admission that the
government’s decision to deny benefits was not “substantially justified” and that Plaintiff is the
prevailing party and entitled to receive an award under the EAJA.
A.

Hourly Rate for Services Performed:

Plaintiff requests compensation under the EAJA at an hourly rate of $186.25 for all
attorney work performed in 2014 and $187.38 for work performed in 2015. We find that these
rates exceed the hourly rates for 2014 and 2015, as adopted by this Court in General Order 39.
Therefore, the undersigned finds the Plaintiff is entitled to an hourly rate of $186.00 for work
performed in 2014, and $187.00 for work performed in 2015.
B.

Clerical Tasks:

Defendant objects to a total of 1.65 attorney hours, arguing that the tasks performed were
clerical in nature and did not require any legal expertise. (ECF No. 16) We are governed by
Granville House, Inc. v. Department of HEW, 813 F.2d 881, 884 (8th Cir. 1987), which held that
work which could have been completed by support staff is not compensable under the EAJA.
This case asserts that it is the task, rather than the title of the individual performing the task, that
determines whether or not the task is clerical.
In a reply filed on February 24, 2016, Plaintiff’s counsel contends that each of these tasks
are compensable under the EAJA. (ECF No. 17) After reviewing counsel’s itemization of time
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and the Defendant’s objections, the undersigned finds that the following tasks are purely clerical
in nature and not compensable under EAJA: receiving and reviewing NEF’s confirming the
filing of the Cover Sheet, Complaint, Summons, Motion to Proceed In Forma Pauperis, Notice
of Assignment of Magistrate, proof of service, transcript, and appeal brief; receiving and
reviewing file stamped copies of the complaint, IFP, civil coversheet, and summons of service;
receiving and reviewing proof of service; and, calendaring. Further, I find that the Plaintiff is
entitled to nominal time for reviewing the Scheduling Order. This document is a form document
that is filed in every social security case pending before this Court. As such, it requires very little
preparation and/or review time. Accordingly, Plaintiff’s award will be reduced by .80 attorney
hours.
C.

Payment of EAJA fees:

Pursuant to Astrue v. Ratliff, 130 S.Ct. 2521, 2528 (2010), the EAJA award should be
made payable to Plaintiff. In keeping with the common practice of this Court, we will direct that
the EAJA award be mailed to Plaintiff’s counsel.
IV.

Conclusion:
Based upon the foregoing, the undersigned recommends that Plaintiff be awarded

attorney fees under the EAJA in the amount of $6,143.04 for 4.50 attorney hours performed in
2014 at a rate of $186.00 per hour, 28.25 attorney hours for work performed in 2015 at an hourly
rate of $187.00, and $23.29 in postage expenses. This amount should be paid in addition to, and
not out of, any past due benefits which Plaintiff may be awarded in the future.
The parties are further reminded that, in order to prevent double recovery by counsel for
the Plaintiff, the award under the EAJA will be taken into account at such time as a reasonable
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fee is determined pursuant to 42 U.S.C. § 406.
Dated this 18th day of June, 2016.

/s/P.K. Holmes,III
P. K. HOLMES, III
CHIEF U.S. DISTRICT JUDGE

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