Pelts v. Social Security Administration Commissioner
MEMORANDUM OPINION AND ORDER on Attorney Fees in the amount of $5,688.03. Signed by Honorable Mark E. Ford on April 3, 2017. (lw)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
CIVIL NO. 2:15-cv-2161-MEF
CAROLYN W. COLVIN, Commissioner
Social Security Administration
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. 17, 18. The matter is before the undersigned by consent
of the parties. ECF No. 6.
On October 28, 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 $6,281.40, representing
a total of 26.00 attorney hours for work performed in 2015 at an hourly rate of $187.00, 7.50
attorney hours for work performed in 2016 at an hourly rate of $188.00, and $24.13 in postage
expense. ECF No. 17, 18. On November 10, 2016, the Commissioner filed a response objecting to
the number of attorney hours for which the Plaintiff seeks compensation. ECF No. 19. Plaintiff
filed a reply on November 22, 2016, contending that she is entitled to compensation for all of the
time requested. ECF No. 20.
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,
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. 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.”).
In the present action, Plaintiff’s case was remanded by this Court pursuant to sentence four
of 42 U.S.C. § 405(g). The Commissioner does not contest Plaintiff’s claim that he is the prevailing
party and does not oppose his application for fees under the EAJA. ECF No. 19. 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.
The Defendant objects to 2.20 attorney hours expended between August 10 - 17, 2015, for
a complete review of the file to determine if an appeal is warranted; a telephone call with the
Plaintiff regarding his appeal and scheduling an office visit; a telephone call with the client
rescheduling his office visit; and, an office visit with the Plaintiff at which time the appeal process
was explained to him and all of the case initiation paperwork was drawn up and signed. Citing
Pray v. Astrue, 2011 WL 6937603, *2 (W.D. Ark. December 2, 2011) (finding certain tasks to be
administrative in nature), Defendant contends that Plaintiff’s attorney is not entitled to recover
EAJA fees for any hours of work performed before a district court action begins. We disagree. An
attorney is expected to be familiar with her case prior to filing a complaint in federal court. At the
very least, this will require her to review notes from the administrative proceedings, communicate
with her client regarding the appellate process, determine whether her client is a candidate for in
forma pauperis, and prepare the complaint for filing with the court.
Defendant also objects to a total of 1.95 attorney hours, arguing that the tasks performed
were clerical in nature and did not require any legal expertise. ECF No. 19. 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: preparation of the complaint, summonses, motion to proceed IFP, civil cover sheet, and
correspondence to clerk and receiving and reviewing NEFs confirming the filing of the Cover
Sheet, Complaint, Summons, Motion to Proceed In Forma Pauperis, and proof of service.
Additionally, Plaintiff’s motion for extension of time will not be compensated.
I also find that counsel is entitled to nominal time for the following tasks: preparing and
signing the service letters, reviewing the scheduling order, reviewing the order scheduling oral
argument, and preparing a motion to appear via telephone conference. These are routine, one-page
documents that should take an attorney nominal time to review and/or prepare. Further, counsel’s
separate notification of contact phone number for oral argument filed after her request to appear
via telephone will not be compensated, as this information could and should have been included
in the motion to appear via telephone conference.
Lastly, counsel is not entitled to the .20 hours requested on August 12, 2015, for a telephone
call to the Plaintiff rescheduling his appointment or .05 hours on August 17, 2017, confirming his
Accordingly, Plaintiff’s award will be reduced by 2.75 attorney hours.
The Commissioner contends that the time requested for the preparation of the complaint
and the appeal brief is excessive and should be reduced. We have already deducted the time
requested for drafting the complaint as a clerical task; however, we do not agree that the 20.60
attorney hours requested for the preparation of the brief in this case is excessive. As the Plaintiff
has indicated, the transcript in this case is over 900 pages. Accordingly, Plaintiff will be awarded
the full amount requested for the preparation of her brief.
The Court does, however, find that the .30 hours requested for reviewing the Order granting
an extension of time to file the appeal brief is excessive and will be reduced by .25 hours.
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.
Based upon the foregoing, the undersigned awards the Plaintiff attorney fees under the
EAJA in the amount of $5,688.03 for 23.10 attorney hours for work performed in 2015 at an hourly
rate of $187.00, 7.15 attorney hours for work performed in 2016 at an hourly rate of $188.00, and
$23.29 in postage expense. 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 3rd day of April, 2017.
/s/ Mark E. Ford
HONORABLE MARK E. FORD
UNITED STATES MAGISTRATE JUDGE
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