Hicks v. Astrue
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION FOR ATTORNEY'S FEES: The Motion 30 is DENIED IN PART and GRANTED IN PART as set forth in the attached Order. Payment of Plaintiff's attorney's costs i n the amount of $163.38 and attorney's fees in the amount of $7120.00 pursuant to the EAJA, 28 U.S.C. § 2412, shall be made to Plaintiff directly, in care of her attorney. by Chief Judge Marcia S. Krieger on 10/11/13. Text Only Entry(msksec, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Honorable Marcia S. Krieger
Civil Action No. 11-cv-02883-MSK
SHALONDA L. HICKS,
MICHAEL J. ASTRUE, Commissioner of Social Security,
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION FOR
THIS MATTER comes before the Court on Ms. Hicks’ Joint Motion for Order to
Approve Stipulation of Award of Attorney’s Fees Under the Equal Access to Justice Act, 28
U.S.C. § 2412 (“Motion”) (#30). Having considered the Motion and the Commissioner’s
Response (#31), the Court
FINDS and CONCLUDES:
For purposes of determining the instant motion, the Court exercises subject matter
jurisdiction pursuant to 42 U.S.C. § 405(g) and 28 U.S.C. § 2412.
Ms. Hicks filed claims for disability insurance benefits and supplemental security
income. She asserted that she had been disabled since September 2, 2008 due to nausea,
At the time Ms. Hicks filed her appeal, Michael J. Astrue was the Commissioner of Social
Security. Carolyn W. Colvin is substituted as the Defendant in this action to reflect her
designation as Acting Commissioner of Social Security, effective February 14, 2013.
vomiting, diarrhea and stomach pain. After a hearing before an ALJ, Ms. Hicks’ claims were
denied in a Decision dated September 14, 2010. Ms. Hicks timely appealed the Decision to the
Appeals Council, which denied review. Ms. Hicks subsequently appealed to this Court on
November 4, 2011. On March 28, 2013, this Court reversed that decision and remanded the case
back to the ALJ for further consideration at Step 4 of the sequential disability evaluation.
In her Motion, Ms. Hicks’ requests attorney’s fees in the amount of $7120.00 and costs in
the amount of $300.00. According to the Motion, Ms. Hicks’ counsel and the Commissioner
have stipulated to an award of attorney’s fees in the amount of $7120.00 pursuant to the Equal
Access to Justice Act, 28 U.S.C. § 2412 (“EAJA”). However, the Commissioner objects to the
amount of costs, arguing that the Court should award only $40.00 in costs (the service of process
Given that the only issue to be resolved in this Motion is the amount of costs to be awarded,
an outline of the basis for the costs Ms. Hicks’ requests is necessary. She characterizes her
request for $300 as a reduction from her actual costs of $556.18. Attached to her Motion are two
pages of itemized costs listing expenditures for photocopies, postage and a single service of
process charge. Based on this list, the total costs for photocopies was $493.25, the total cost for
postage was $22.93 and the total cost for the service of process was $40.00. Neither the specific
number of pages nor the cost-per-page were listed. According to the Motion, these copies were
necessary because Ms. Hicks’ attorney has a “decreasing vision disorder that necessitates
On July 16, 2013, Ms. Hicks filed a Motion for Status and Order to Approve Stipulation of
Award of Attorney Fees Under the Equal Access to Justice Act 28 U.S.C. §2412 (#32). The
Court denied this motion (#33) because Ms. Hicks’ counsel did not comply with
D.C.COLO.LCivR 7.1.A. In this second Motion, Ms. Hicks again requested the stipulated
attorney’s fees, but increased her request for payment of costs to $365.00. Although the Court
denied this second Motion for failure to comply with the local rules, this ruling was not meant to
also deny Ms. Hicks’ original Motion for attorney’s fees and costs (#30), and the Court herein
gives due consideration to this original request.
working from print instead of the direct computer screen.” This required the printing of the
transcript, client communications and “brief work.” According to the Commissioner’s Response,
Ms. Hicks’ attorney stated to the Commissioner’s counsel that the cost per page of the copies in
Ms. Hicks’ itemized list was 50 cents per page. Ms. Hicks’ attorney also stated that the actual
cost per copy in her office is 12.5 cents per page.
The sole issue before the Court is whether Ms. Hicks should be awarded costs of
$300.00, pursuant to the EAJA.
The EAJA provides that a prevailing party in a civil action against the United States may
recover costs under 28 U.S.C. § 1920. See 28 U.S.C. § 2412(a)(1). 28 U.S.C. § 1920
enumerates certain costs that a court may tax:
(1) Fees of the clerk and marshal;
(2) Fees for printed or electronically recorded transcripts necessarily obtained for use in the
(3) Fees and disbursements for printing and witnesses;
(4) Fees for exemplification and the costs of making copies of any materials where the copies
are necessarily obtained for use in the case;
(5) Docket fees under section 1923 of this title;
(6) Compensation of court appointed experts, compensation of interpreters, and salaries, fees,
expenses, and costs of special interpretation services under section 1828 of this title.
“To be recoverable, a prevailing party’s transcription and copy costs must be ‘reasonably
necessary to the litigation of the case.’” In re Williams Securities Litigation-WCG Subclass, 558
F.3d 1144, 1148 (10th Cir. 2009) (citation omitted). The burden of justifying copy costs under
28 U.S.C. § 1920 is not a high one, but does rest with the prevailing party. In re Williams, 558
F.3d at 1148-49, (citing Case v. Unified Sch. Dist. No. 233, 157 F.3d 1243, 1259 (10th Cir.
1998)). “The taxing of costs [under 28 U.S.C. § 1920] rests in the sound judicial discretion of
the district court.” Callicrate v. Farmland Industries, Inc., 139 F.3d 1336, 1339 (10th Cir.
The Court addresses Ms. Hicks’ request for payment of the service of process fee,
postage and copy costs in turn. First, the Commissioner concedes that Ms. Hicks’ request for
payment of the $40.00 service of process fee is a valid request under 28 U.S.C. § 1920. Second,
Ms. Hicks’ request for payment of the $23.93 in postage costs is not a valid request under 28
U.S.C. § 1920. See Weakley v. Bowen, 803 F.2d 575, 580 (10th Cir. 1986) (costs for postage
fees not authorized).
Third, the Court finds that Ms. Hicks’ has adequately justified her copy costs, but that
these costs total $123.38. According to her Motion, Ms. Hicks’ attorney required paper copies of
the transcript, client communications and the briefs because she has a “decreasing vision
disorder.” Given the low burden for justifying copy costs, Ms. Hicks’ attorney’s vision problems
constitute adequate justification for printing copies, as the ability to read the transcript, client
communications and the briefs was necessary to properly litigate this case. According to her
itemized list, Ms. Hicks’ total copying costs were $493.25. However, her attorney represented to
the Commissioner’s counsel that she was basing this calculation on costs of 50 cents per page.
Dividing $493.25 by .50 results in 986.5 total pages. Rounding up, 987 pages multiplied by Ms.
Hicks’ actual cost per page (12.5 cents) results in actual copying costs of $123.38. Combined
with the $40.00 service of process cost, the Court finds that Ms. Hicks should be awarded
$163.38 in costs.
IT IS ORDERED that the Motion is DENIED IN PART and GRANTED IN PART as
set forth herein. Payment of Plaintiff’s attorney’s costs in the amount of $163.38 and attorney’s
fees in the amount of $7120.00, pursuant to the EAJA, 28 U.S.C. § 2412, shall be made to
Plaintiff directly, in care of her attorney, at:
Virginia Lee Card Smith
V.L. Card Smith Law Office
1763 Franklin Street
Denver, CO 80218-1124
DATED this 10th day of October, 2013
BY THE COURT:
Marcia S. Krieger
United States District Judge
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