Copher v. Social Security Administration Commissioner
Filing
16
ORDER granting 14 Motion for Attorney Fees in favor of Clifford A. Copher against Social Security Administration Commissioner in the amount of $4,084.84. 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 December 30, 2015. (tg)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FAYETTEVILLE DIVISION
CLIFFORD A. COPHER
v.
PLAINTIFF
CIVIL NO. 14-5152
CAROLYN W. COLVIN, Commissioner
Social Security Administration
DEFENDANT
ORDER
Plaintiff, Clifford A. Copher, appealed the Commissioner's denial of benefits to this
Court. On July 13, 2015, judgment was entered remanding Plaintiff's case to the Commissioner
pursuant to sentence four of 42 U.S.C. § 405(g). (Doc. 13). Plaintiff now moves for an award
of $4,198.04 in attorney’s fees and costs under 28 U.S.C. § 2412, the Equal Access to Justice
Act (hereinafter “EAJA”), requesting compensation for 21.10 1 attorney hours of work before
the Court at an hourly rate of $187.00 for work performed in 2014 and 2015; 2.75 paralegal
hours of work before the Court at an hourly rate of $75.00; and $27.39 in expenses. (Docs.
14-15). Defendant did not file a response to the motion.
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
1
The Court notes Plaintiff’s counsel requested a total of 21.20 attorney hours; however, the hours on the itemization
indicate Plaintiff’s counsel performed 21.10 attorney hours on the case. (Doc. 4, Exhibit 3).
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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
the work.”
Id.
Where documentation is inadequate, the Court may reduce the award
accordingly. Hensley, 461 U.S. at 433 (1983).
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Plaintiff’s attorney requests an award under the EAJA for 19.50 hours of attorney work
performed in 2014, at an hourly rate of $187.00; and 1.60 hours of attorney work performed in
2015, at an hourly rate of $187.00. 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).
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. Therefore, the undersigned believes her argument for enhanced fees based on a
cost of living increase has merit. 2
In Sanders v. Astrue, 2012 WL 19422 (W.D. Ark. Jan. 3, 2012) and 2011 WL 6937591
(W.D.Ark. October 31, 2011), this Court decided to follow the approach set forth in Knudsen
v. Barnhart, 360 F.Supp. 2d 963, 969-974 (N.D. Iowa 2004), when determining how to a
2
Per General Order 39, the allowable rate for each year is a follows, and for simplicity sake, the figure is rounded
to the nearest dollar:
2014 - 227.082 x 125 divided by 152.4 (March 1996 CPI -South) = $186.25/hour- 186.00,
2015 - 228.451 x 125 divided by 152.4 (March 1996 CPI-South) = $187.38/hour - $187.00.
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compute an attorney’s fee award. In Knudsen, 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 are performed.” Id. at 974. The
Knudsen Court felt that this approach would strike a balance between “accuracy and what the
court believes would potentially turn into a calculation nightmare.” Id. The Court finds that
an award based upon an hourly rate of $186.00 for work performed in 2014, and $187.00 for
work performed in 2015, reflecting an increase in the cost of living, is appropriate in this
instance. See Johnson, 919 F.2d at 505.
Plaintiff’s counsel has also requested 2.75 paralegal hours of work at the rate of $75.00
per hour. The Court finds $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. The Court has reviewed the itemized statement, and finds the amount of 19.50 hours
for work performed in 2014, at an hourly rate of $186.00, and 1.60 hours for work performed
in 2015, at an hourly rate of $187.00, is reasonable.
Plaintiff’s counsel seeks 1.00 paralegal hour on June 8, 2014 (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
the Court deducts 1.00 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
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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, the Court deducts 1.00 paralegal hour from the total number
of compensable hours sought.
Finally, counsel seeks reimbursement for $27.39 in postage. Such expenses are
recoverable under the EAJA and the Court finds $27.39 is reasonable. See Kelly v. Bowen,
862 F.2d 1333, 1335 (8th Cir. 1988).
Based upon the holding in Astrue v. Ratliff, 130 S. Ct. 2521 (2010), the EAJA award
should be paid directly to Plaintiff.
Based upon the foregoing, the Court finds that Plaintiff is entitled to an attorney’s fee
award under the EAJA for: 19.50 attorney hours for work performed in 2014, at hourly rate of
$186.00, 1.60 attorney hours for work performed in 2015, at an hourly rate of $187, and 1.75
(2.75-1.00) paralegal hours at an hourly rate of $75.00, for a total attorney’s fee of $4, 057.45;
and $27.39 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.
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.
IT IS SO ORDERED AND ADJUDGED this 30th day of December, 2015.
/s/ Erin L. Setser
HON. ERIN L. SETSER
UNITED STATES MAGISTRATE JUDGE
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