Combs v. Social Security Administration Commissioner
Filing
20
MEMORANDUM OPINION AND ORDER awarding Attorney Fees in the amount of $4,716.00. Signed by Honorable Mark E. Ford on February 18, 2016. (lw)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
TINA ANNE COMBS
PLAINTIFF
v.
CIVIL NO. 2:14-cv-02250-MEF
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. 15, 16, 17) The matter is before the undersigned by
consent of the parties. (ECF No. 6)
I.
Background:
On January 19, 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 $5,094.00
representing a total of 28.30 attorney hours for work performed in 2014 and 2015 at an hourly
rate of $180.00. (ECF No. 17-1) On January 27, 2016, the Commissioner filed a response
voicing no objection to the hourly rate sought, but objecting to the number of hours Plaintiff’s
counsel is requesting. (ECF No. 18) The Plaintiff filed a reply on February 16, 2016, contending
the fee requested is reasonable and compensable under the EAJA. (ECF No. 19) Further, she
asserts that the Commissioner’s objections are merely an attempt to “micro manage” her
attorney’s work load.
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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).
Under Shalala v. Schaefer, 509 U.S. 292, 302 (1993), a social security 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.
The EAJA 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).
However, 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 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 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.
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Hensley v. Eckerhart, 461 U.S. 424, 430 (1983). Further, 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.”).
As a general rule, 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 attorney’s justifies a
higher fee. 28 U.S.C. § 2412(d)(2)(A). The decision to increase the hourly rate is not automatic,
though, and remains at the discretion of the district court. McNulty v. Sullivan, 886 F.2d 1074
(8th Cir. 1989). In Sanders v. Astrue, 2012 WL 19422 (W.D. Ark. Jan 3, 2012), this Court
decided to follow the approach set forth in Knudsen v. Barnhart, 360 F. Supp. 2d 963, 969-974
(N.D. Iowa 2004), wherein the Court found that “a reasonable balance between accuracy and
ease of computation would be to require attorneys to adjust fees using the CPI available and
applicable to the year when services were performed.” Id. at 974. In this case, we find that an
increase in the cost of living justifies a higher fee. Accordingly, the Plaintiff is entitled to receive
$180.00 per attorney hour completed in the furtherance of her case.
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) The Commissioner 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. 18. The Court construes this lack of opposition to this application as an admission that
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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.
Clerical Tasks:
The Commissioner objects to a total of 2.50 attorney hours, arguing that the tasks
performed were clerical in nature and did not require any legal expertise. 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.
After reviewing counsel’s itemization of time 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, appeal brief, and duplication statement; receiving and
reviewing proof of service; calendaring deadlines; and, electronically filing Plaintiff’s affidavits
of service, appeal brief, and duplication statement. Further, I find that the Plaintiff is entitled to
only nominal time for each of the following tasks: reviewing the Order granting IFP, signing and
reviewing the Affidavits of Service and letters of service, reviewing the Defendant’s Answer,
reviewing the Scheduling Order. These documents are form documents that are filed in every
social security case pending before this Court. As such, they require very little preparation and/or
review time. Accordingly, Plaintiff should be awarded .40 attorney hours for performing these
tasks, reducing the Plaintiff’s fee request by 2.10 hours.
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B.
EAJA Motion:
Next, the Commissioner contends that the 2.50 hours Plaintiff requests in compensation
for the preparation of the Motion for EAJA fees and its supporting documentation is excessive.
The undersigned finds that 2.50 hours is a reasonable amount of time for the preparation of these
documents. Accordingly, the Plaintiff will be awarded the full time requested for the completion
of this task.
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 awards the Plaintiff attorney fees under the
EAJA in the amount of $4,716.00 for 26.20 attorney hours performed in 2014 and 2015 at a rate
of $180.00 per hour. 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
fee is determined pursuant to 42 U.S.C. § 406.
Dated this 18th day of February, 2016.
/s/ Mark E. Ford
HONORABLE MARK E. FORD
UNITED STATES MAGISTRATE JUDGE
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