Bateman v. Social Security Administration Commissioner
JUDGMENT on Attorney Fees in favor of Bruce E. Bateman against Social Security Administration Commissioner in the amount of $3548.90 with court costs in the amount of $26.04. 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 Erin L. Setser on March 12, 2015. (tg)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
BRUCE E. BATEMAN
CAROLYN W. COLVIN,
Acting Commissioner of the Social Security Administration
Plaintiff, Bruce E. Bateman, appealed the Commissioner’s denial of benefits to the Court.
On September 18, 2014, a Judgment was entered remanding this matter to the Commissioner
pursuant to sentence four of 42 U.S.C. § 405(g). (Doc. 17). Plaintiff now moves for an award
of $3,793.54 in attorney’s fees and costs under 28 U.S.C. § 2412, the Equal Access to Justice
Act (hereinafter “EAJA”), requesting compensation for 19.25 attorney hours of work performed
before the Court in 2013 and 2014, at an hourly rate of $185.00, and 2.75 paralegal hours of
work performed in 2013 and 2014, at an hourly rate of $75.00. Defendant filed a response to
Plaintiff’s request, stating that she does not object to the request.
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.
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
Id. 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 $185.00 for
19.25 attorney hours in 2013 and 2014, and an hourly rate of $75.00 for 2.75 paralegal hours
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 CPISouth urban, which supports an award based upon an hourly rate of $183.00 in 2013 and
$185.00 in 2014.1 See Johnson, 919 F.2d at 505.
The Court will next address the number of hours requested by Plaintiff’s counsel.
Plaintiff’s counsel requests reimbursement for the following activities:
(Attorney hours) Received and reviewed Summonses
issued by Clerk of court
(Attorney hours) Reviewed service letters and
signed for sending
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:
2013 - 223.109 x 125 divided by 152.4 (March 1996 CPI -South) = $182.99/hour-$183.00
2014 - 227.082 x 125 divided by 152.4 (March 1996 CPI -South) = $186.25 hour-$186.00
(Attorney hours) Reviewed certified mail receipts
and Affidavit of Service
(Paralegal hours) 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.
These tasks are clerical in nature and cannot be compensated under the EAJA. 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). Therefore, the Court will
deduct .45 hours from the attorney hours for 2013 and 1 hour from the paralegal hours.
Plaintiff’s attorney seeks reimbursement for 1.75 hours of paralegal time spent preparing
and filing the EAJA fee request in 2014. The Court believes that the time claimed for preparing
what appears to be the standard fee petition and brief submitted by Plaintiff’s counsel in social
security cases is excessive. The Court will deduct .75 hours from the paralegal time claimed.
Plaintiff’s attorney seeks $26.04 for certified mail receipts. Postage fees are not
classified as costs under § 1920, and are, therefore, recoverable under the EAJA as expenses.
Accordingly, the Court finds that $26.04 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: 2.05 attorney hours (2.50 hours less .45 hours) for work
performed in 2013 at an hourly rate of $183.00 and 16.75 attorney hours for work performed in
2014 at an hourly rate of $185.00; 1 paralegal hours (2.75 hours less 1.75 hours) at an hourly
rate of $75.00, plus $26.04 in expenses, for a total attorney’s fee award of $3,548.90, plus
$26.04 in 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. 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 12th day of March, 2015.
/s/ Erin L. Setser
HONORABLE ERIN L. SETSER
UNITED STATES MAGISTRATE JUDGE
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