McCarley v. Social Security Administration Commissioner
ORDER on Attorney Fees in the amount of $2,935.12 plus $29.06 in costs. This amount should be paid in addition to, and not out of, any past due benefits which plaintiff may be awarded in the future. Signed by Honorable Erin L. Setser on December 7, 2011. (lw)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
MICHAEL LEON MCCARLEY, JR.
CIVIL NO. 10-3061
MICHAEL J. ASTRUE,
Commissioner of the Social Security Administration
Plaintiff Michael Leon McCarley, Jr., appealed the Commissioner’s denial of benefits
to the Court. On July 22, 2011, a Judgment was entered remanding Plaintiff’s case to the
Commissioner, pursuant to sentence four of 42 U.S.C. § 405(g). (Doc. 11). Plaintiff now moves
for an award of $3,535.05 in attorney’s fees, and $29.06 in costs, under 28 U.S.C. §2412, the
Equal Access to Justice Act (hereinafter “EAJA”). (Doc. 12). Defendant has filed a response
to Plaintiff’s application, stating that he does not oppose an award to Plaintiff in the amount
requested. (Doc. 14). Defendant argues that the award should be paid to Plaintiff.
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. After reviewing the file, the Court finds that
Plaintiff is a prevailing party in this matter.
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 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
Where documentation is inadequate, the Court may reduce the award
accordingly. Hensley, 461 U.S. at 433 (1983).
Plaintiff’s attorney requests an award under the EAJA at an hourly rate of $152.00 for
21.90 hours of work performed in 2010 and 2011, and an hourly rate of $75.00 for 2.75 hours
of paralegal work performed in 2010 and 2011, which she asserts was 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. Id., 461 U.S. at 437. 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
[the maximum statutory hourly rate],” such as a copy of the Consumer Price Index (CPI).
Plaintiff’s counsel submitted a CPI in support of her requested hourly rate. The Court will
therefore award Plaintiff’s counsel an hourly rate of $152.00.
Plaintiff’s counsel has also requested paralegal hours of work at the rate of $75.00 per
hour. We find $75.00 per hour for paralegal work to be reasonable.
We next address the number of hours Plaintiff's counsel claims she spent working on this
case. Plaintiff’s counsel seeks a total of 12.05 hours for reviewing the 152 page transcript, and
preparing the brief. Although the Defendant did not object to the number of hours Plaintiff’s
counsel spent preparing the brief, the Court finds this number of hours to contain duplication or
to otherwise be excessive. Plaintiff’s counsel seeks payment for 2.25 hours spent reviewing the
transcript of “152 pages @ 30 seconds per page]; Take notes. Prepare outline for brief” on
November 15, 2010. Counsel then seeks payment for 3.10 hours to “Chronologically order, tag
and review medical records [29 pages @ 1 minute per page]; Preparation of jurisdictional
statement, statement of issues and fact statement.” Plaintiff’s counsel also seeks 0.80 hour for
reviewing the transcript and exhibits for accuracy. It is clear that the review of 29 pages of
medical records at 1 minute per page, and the 0.80 review of the transcript for accuracy is
duplicative to the time Plaintiff’s counsel claimed in the entry for reviewing the transcript on
November 15, 2010. The amount of 1.28 hours will therefore be deducted. Plaintiff’s counsel
is cautioned to avoid such duplicative entries in the future or to clarify in her itemization
why such entries are not duplicative. The Defendant is encouraged to carefully review the
itemization provided by Plaintiff’s counsel in social security cases going forward.
Plaintiff’s counsel also seeks payment for 2.62 hours on November 16, 2010, to prepare
a jurisdictional statement, statement of issues and a fact statement. The Court finds the time
sought to prepare these statements to be excessive. Specifically, the Court notes that the
jurisdictional statement and statement of issues consist of short canned language. The one
paragraph procedural background also should not have required a significant amount of time to
prepare. With regard to the statement of facts, the Court would point out that the most time
consuming portion of the facts would be the medical history, for which Plaintiff’s counsel sought
time in a different entry of the itemization. Therefore, the Court will reduce the time sought to
Plaintiff’s counsel seeks 1.00 paralegal hour on August 17, 2010 (Prepare and send
summonses and service letters to US office of General Counsel, US Department of Justice, and
US Attorney by certified mail return receipt requested delivery to postal service), from which we
deduct 1.00 paralegal hour; 1.25 paralegal hours on October 18, 2011 (Transcribe EAJA
submission of time itemization with proofreading of addition and returned to attorney for
review), from which we deduct 1.25 paralegal hours; and 0.50 paralegal hour on October 19,
2011 (Corrections and finalization of EAJA submission), from which we deduct 0.50 paralegal
hour. This time cannot be compensated under the EAJA as it is found to be clerical work. See
Missouri v. Jenkins by Agyei, 491 U.S. 274, 288 (1989)(Paralegal work is work that might
otherwise be performed by a lawyer, such as factual investigation, including locating and
interviewing witnesses; assistance with depositions, interrogatories, and document production;
compilation of statistical and financial data; checking legal citations; and drafting
correspondence. Purely clerical or secretarial tasks should not be billed at a paralegal rate);
Miller v. Alamo, 983 F.2d 856, 862 (8th Cir. 1993)(Work done by paralegals is compensable
if it is work that would have been done by an attorney, such as going to the library to locate cases
and preparing materials used by an attorney at oral argument). Accordingly, we deduct 2.75
paralegal hours from the total number of compensable hours sought.
Plaintiff’s counsel seeks reimbursement for $29.06 in expenses incurred with regard to
postage. Such expenses are recoverable under the EAJA and we find $29.06 to be a reasonable
award. See Kelly v. Bowen, 862 F.2d 1333, 1335 (8th Cir. 1988).
Finally, Plaintiff’s counsel has submitted an assignment signed by Plaintiff, apparently
in an effort to request that the Court direct payment of the EAJA award directly to Plaintiff’s
counsel and not to Plaintiff.
On June 14, 2010, the United States Supreme Court held that fee awards under the EAJA
are payable to the party litigant, not the party’s attorney. See Astrue v. Ratliff, 130 S.Ct. 2521
(2010). In other cases, Defendant has also argued that the purported assignment between
Plaintiff’s counsel and Plaintiff is invalid pursuant to the Anti-Assignment Act, 31 U.S.C. §
3727(b).1 Nonetheless, Defendant has agreed to waive strict compliance with the AntiAssignment Act only if the Court issues the Order for the EAJA award to be payable to Plaintiff,
and the Defendant determines that Plaintiff does not owe a debt to the United States. Defendant
states once the Order is entered awarding a claimant’s attorney’s fees under the EAJA, the
Defendant will contact the Treasury Department to determine if the claimant owes the
government a debt that is subject to administrative offset. If Plaintiff does not owe a debt when
the Defendant effectuates the Court’s order awarding EAJA fees, the Defendant will waive the
The Anti-Assignment Act governs, among other things, a “transfer or assignment of
any part of a claim against the United States Government[.]” 31 U.S.C. § 3727(a)(1). The
Act establishes several technical requirements for a valid assignment:
An assignment may be made only after a claim is allowed, the amount of the
claim is decided, and a warrant for payment of the claim has been issued. The
assignment shall specify the warrant, must be made freely, and must be attested
to by 2 witnesses. The person making the assignment shall acknowledge it before
an official who may acknowledge a deed, and the official shall certify the
assignment. The certificate shall state that the official completely explained the
assignment when it was acknowledged. An assignment under this subsection is
valid for any purpose.
31 U.S.C. § 3727(b).
requirements of the Anti-Assignment Act and honor the agreement between Plaintiff and his
attorney by paying the EAJA award directly to Plaintiff’s counsel. However, if Plaintiff does
owe a debt, the Defendant will not waive the Anti-Assignment Act and will pay the EAJA award
to Plaintiff, thus subjecting the award to offset.
In the present case, whether Plaintiff owes a debt to the government is unknown to the
Court, and the Court is hesitant to take on the task of determining whether an offsetting
qualifying debt exists. Therefore, this Court, like other courts have done throughout the circuits
since the determination in Ratliff, believes Defendant’s proposal addressed above, will best serve
all parties of interest. See Johnson v. Astrue, 2011 WL 1298035 * 2 (E.D.Ark. April 4, 2011)
(approving the Commissioner’s proposal to decide whether to waive compliance with the AntiAssignment Act and to pay Plaintiff’s counsel directly only after an order is entered awarding
EAJA attorney’s fees directly to the claimant and the Commissioner determines the claimant
does not owe the government a debt); Kelley v. Astrue, 2010 WL 3636145 (E.D.Ky. Sep.14,
2010) (unpublished decision) (approving of Commissioner's proposal to decide whether to waive
compliance with the Anti–Assignment Act and to pay the claimant's attorney directly only after
an order is entered awarding EAJA attorney's fees directly to the claimant—“the Court believes
the best practice is to award the EAJA fees directly to Plaintiff. The Court will not engage in
determining whether Plaintiff owes a debt to the government. Instead, the Court will leave it to
the discretion of the Commissioner whether to honor Plaintiff's assignment of her EAJA fees”);
Calderon v. Astrue, 2010 WL 4295583 (E.D. Cal. Oct. 22, 2010) (approving Commissioner's
proposal and awarding EAJA attorney's fees to the claimant—“Defendant ... seems to be content
to permit payment to Plaintiff's counsel if Plaintiff does not have any qualifying government debt
pursuant to government's discretionary waiver of the requirements of the Anti–Assignment Act.
This Court finds the government's position to be reasonable and will therefore permit payment
to Plaintiff's counsel provided Plaintiff has no government debt that requires offset”).
Accordingly, the EAJA award should be paid directly to Plaintiff.
Based upon the foregoing, the Court finds that Plaintiff should be awarded attorney’s fees
under the EAJA for: 19.31 attorney hours (21.90 hours - 2.59 hours) at a rate of $152.00 per
hour, for a total attorney’s fee award of $2,935.12, plus $29.06 in costs. This amount should
be paid in addition to, and not out of, any past due benefits which Plaintiff may be awarded in
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 day of 7th day of December, 2011.
/s/ Erin L. Setser
HONORABLE ERIN L. SETSER
UNITED STATES MAGISTRATE JUDGE
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