Whittington v. Astrue

Filing 38

ORDER finding as moot 32 Motion for Attorney Fees; granting 33 AMENDED Motion for Attorney Fees.Ordered by Judge W. Louis Sands on 4/5/13 (wks)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
ALBANY DIVISION
SHELIA WHITTINGTON,

:
:
Plaintiff,
:
:
v.
:
:
:
CAROLYN COLVIN,1 Commissioner
of Social Security,
:
:
Defendant.
:
___________________________ _:

Case No.: 1:10-cv-131 (WLS)

ORDER
After the successful appeal of the denial of her social security benefits, Plaintiff
Shelia Whittington filed the instant Motion for Attorneys’ Fees requesting $13,565.05
for her two lawyers, Yolanda McKoy-Mott and Rachael G. Henderson of the Georgia
Legal Services Program, based on 86.55 billable hours. (Doc. 131.) The Court grants the
motion and awards Whittington $12,977.55.
The Equal Access to Justice Act requires a court to
award to a prevailing party . . . fees and other expenses . . . incurred by that
party in any civil action . . . including proceedings for judicial review of
Agency action, brought by or against the United States unless the court
finds that the position of the United States was substantially justified or
that special circumstances make an award unjust.
28 U.S.C. § 2412(d)(1)(A). In other words, the EAJA contains four elements: (1) the
moving party must be the prevailing party in a civil action against the Unite States; (2)
the plaintiff must file the application for fees within thirty days of the final judgment; (3)

1

Carolyn W. Colvin became Acting Commissioner of Social Security on February 14, 2013. The Court substitutes
her as the defendant under Federal Rule of Civil Procedure 25(d)(1).

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the position of the government was not substantially justified; and (4) there are no
special circumstances making an award unjust. Id.
In this case, there is not dispute Whittington satisfies these elements. (See Doc.
35 at 2 (“In this case, the Commissioner does not challenge Plaintiff’s assertion that she
was the ‘prevailing party’ in this action, that her position was substantially justified, or
the hourly rates requested.”).) The Commissioner, however, argues the $13,565.05
request is unreasonable because 86.55 hours is an inordinate amount of time to spend
on this social security appeal. (Id. at 3.) The Commissioner urges the Court to scrutinize
Whittington’s request because this case was not unusually complex, some of the work
appears clerical and duplicative, and a plaintiff cannot recover fees for work performed
prior to the initiation of a lawsuit. (Id. at 4–8.)
Whittington admits the request is above average. (Doc. 32-3 at 6.) But she
maintains this was a complex case involving four distinct legal issues and a 400-page
transcript. (Doc. 36 at 2.) Furthermore, per Whittington, this case was unique because
the Commissioner denied her continued benefits because she failed to cooperate. (Doc.
32-3 at 6.) Therefore, the case required her attorneys to pore through the administrative
record to find things that were absent from the record. (Id.) In other words, they claim
preparing the case was different than, say, litigating a case challenging whether the
ALJ’s decision is supported by substantial evidence. (Doc. 36 at 2–3.)
Turning now to the merits, the Court finds Whittington’s amended request2 (Doc.
36 at 4) is reasonable. First, the Commissioner’s claim that Whittington cannot receive
fees for pre-complaint work is unpersuasive. The Eleventh Circuit has suggested that a

2

Whittington’s amended request removed several of the billing entries the Government objected to as duplicative or
clerical.

2

plaintiff may recover fees under the EAJA before the filing of an action when the hours
are “linked to the preparation of the civil action in federal court.” Pollgreen v. Morris,
911 F.2d 527, 534–36 (11th Cir. 1990). A number of courts have held a plaintiff may
recover such fees. Caylor v. Astrue, 769 F. Supp. 2d 1350, 1352–53 (M.D. Fla. 2011)
(collecting cases and holding that plaintiff could recover time attorney spent reviewing
case before filing federal complaint). Furthermore, as a practical matter, attorneys have
an ethical obligation to certify the factual and legal bases of their pleadings, Fed. R. Civ.
P. 11, so a ruling that prohibits them from recovering fees from preparing a complaint
would create perverse incentives.
Additionally, although Whittingon’s request is atypical, the Court does not
believe it is unreasonable. The complexity of this case is reflected by the Commissioner’s
two requests for extensions to respond to Whittington’s brief. (Docs. 23, 24.) In the
second request for an extension of time, the Commissioner explained
We acknowledge that second extensions are not favored by the Court.
However, we rarely ask for second extensions and this case has presented
some technical and complicated issues that required agency counsel to
confer with other components in the agency who had the technical
expertise to assist her in formulating a proper response, which took longer
than expected.
(Doc. 24.) This request is telling, particularly because the Assistant United States
Attorney assigned to this case has represented the Government in thousands of cases
before the Middle District of Georgia and the Eleventh Circuit. And, of course,
Whittington’s counsel did not have the benefit of consulting with the agency when
preparing her brief. A review of both Parties’ briefs verifies this was a complex case
requiring irregular amounts of preparation and research. (See Docs. 22, 25, 28.)

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Finally, the Commissioner’s comparator cases are distinguishable. Howard v.
Astrue, 3:10-cv-86 (M.D. Ga. Jan. 13, 2012), involved an initial disability determination
and whether the Court should remand the case to ALJ or find that the evidence
established disability without any doubt. Perkins v. Astrue, 1:09-cv-60 (M.D. Ga. Sept.
1, 2010) involved one issue: whether the ALJ applied the correct legal standards under
Listing 12.05(c). Similarly, the Court in Taylor v. Astrue, 5:09-cv-146 (M.D. Ga. Jun. 1,
2010), primarily addressed the sole question of whether substantial evidence supported
the ALJ’s decision.
In contrast, this case involved four issues of a complex, technical nature. And
although the Commissioner has identified a number of cases involving lower fee awards,
courts have also given higher awards when warranted. See Hill v. Comm’r, Soc. Sec.
Admin., No. 7-19410-JE, 2009 WL 1838332, at *2 (D. Or. Jun. 24, 2009) (collecting
cases); see also Bright-Jacobs v. Barnhart, 386 F. Supp. 2d 1352, 1355 (N.D. Ga. 2005)
(awarding $17,143.23).
Therefore, Whittington’s Motion for Attorneys’ Fees is GRANTED, subject to the
amendment she made in her reply brief. The Commissioner is ORDERED to pay
Whittington $12,977.553 in attorneys’ fees.
SO ORDERED, this 5th day of April 2013.
/s/ W. Louis Sands
THE HONORABLE W. LOUIS SANDS,
UNITED STATES DISTRICT COURT

3

The Court reaches this figure after subtracting the 14.8 hours Whittington’s reply removed from her request.
Because Whittington requested only one-third McKoy-Mott’s time because of her inexperience in federal court, the
Court subtracted 14.8 from the 108 hours and divided that number by three.

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