SHAW v. BERRYHILL

Filing 30

ORDER granting in part and denying in part 22 Motion for Attorney Fees. Ordered by US MAGISTRATE JUDGE STEPHEN HYLES on 9-26-18 (jdl)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
ATHENS DIVISION
LISA LEE SHAW,
Plaintiff,
v.
NANCY A BERRYHILL,
Commissioner of Social Security,
Defendant.

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CASE NO. 3:17-CV-64-MSH
Social Security Appeal

ORDER
Pending before the Court is Plaintiff’s Motion for Attorney’s Fees under the Equal
Access to Justice Act (“EAJA”) (ECF No. 22). On March 26, 2018, the Court entered an
order remanding this case to the administrative level for further proceedings (ECF No. 20).
On June 25, 2018, Plaintiff filed a motion for attorney’s fees under a provision of the EAJA,
28 U.S.C. § 2412(d) (ECF No. 22). Plaintiff seeks attorney’s fees in the amount of
$11,455.94, to be paid to Plaintiff’s counsel. The requested fee award for attorney work
hours consists of $193.92 per hour for 14.5 hours of work by Howard D. Olinsky, 38.3
hours of work by Nathaniel Riley, and 0.5 hours of work by Edward A. Wicklund. Olinsky
Aff. 2, ECF No. 23; Olinsky Aff. Ex. B, ECF No. 23-2. According to counsel, the hourly
rate of $193.92 is based on the First Half of 2017 Consumer Price Index (“CPI”) hourly
rate. Olinsky Aff. Ex. A, ECF No. 23-1. Plaintiff also requests $100 per hour for 11.2
hours of work by Mr. Olinsky’s paralegals and $581.76 in attorney’s fees for the time spent

responding to the Commissioner’s objections to the motion for attorney’s fees. Olinsky
Aff. 2; Pl.’s Reply 4, ECF No. 29.
The Commissioner objects to the motion. She argues: 1) The work of Nathaniel
Riley should be billed at the same rate as a paralegal; 2) The paralegal rate should be
reduced to $95.00 per hour; and 3) The number of hours billed is excessive.
DISCUSSION
The EAJA provides that:
a court shall award to a prevailing party other than the United States fees and
other expenses…incurred by that party in any civil action…brought by or
against the United States in any court having jurisdiction of that action,
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). Awards of attorney's fees shall be based on prevailing
market rates for comparable services. 28 U.S.C. § 2412(d) (2)(A). However, fees
in excess of $125 per hour shall not be awarded “unless the court determines that an
increase in the cost of living or a special factor, such as the limited availability of
qualified attorneys for the proceedings involved, justifies a higher fee.” Id.
Plaintiff is the prevailing party in this case.
I.

Hourly Rate of Nathaniel Riley
The Commissioner argues that the hours worked by Nathaniel Riley should

be billed at the customary rate for a paralegal because Mr. Riley is neihter admitted
to practice in Georgia, nor admitted pro hac vice in this case. The Commissioner
cites the local rules which require that an attorney appearing as counsel before this
Court meet one of those requirements. M.D. Ga. Loc. R. 83.1.1(b); M.D. Ga. Loc.
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R. 83.1.2(c). Def.’s Resp. 3-4. She also cites cases from the Middle District of
Florida in which the hourly fees of attorneys not admitted to practice before the
court were reduced to those of a paralegal. However, in each of those cases, the
courts’ rulings were based on what was deemed an abuse of the privilege to practice
by non-admitted attorneys. Bumgardner v. Commissioner of Soc. Sec., No. 6:12cv-18-Orl-31TBS, 2014 WL 5426538, at *2 (M.D. Fla. Oct. 22, 2014) (citing M.D.
Fla. R. 2.02(a) which bars appearance of non-admitted attorney who has abused the
privilege); Riggins v. Astrue, No. 3:09-cv-856-TEM, 2011 WL 2119338, at *2-3
(M.D. Fla. May 27, 2011) (citing “pattern” by attorney of practicing without
admission to the Florida bar or pro hac vice admission). Here, the Commissioner
has made no showing that there has been any abuse by Mr. Riley.
Moreover, the U.S. Circuit Court of Appeals for the Eleventh Circuit has held
that while a district court may use its discretion to reduce the hourly rate of a nonadmitted attorney to that of a paralegal, it is not required to do so. See Zech v.
Comm’r of Soc. Sec., 680 F. App’x 858, 860 (11th Cir. 2017) (per curiam). In this
district, U.S District Judge Hugh Lawson previously declined the Commissioner’s
request that the hourly rate for a non-admitted attorney be reduced to that of a
paralegal. Golden v. Astrue, No. 7:10-cv-138-HL, 2012 WL 2343899, at *3 n.1
(M.D. Ga. June 20, 2012). 1 This Court similarly declines the Commissioner’s
request.

1 Judge Lawson’s order in Golden does not summarize the Commissioner’s

grounds for seeking a
reduction of the hourly rate. However, “a court may take judicial notice of its own records.” U.S.
v. Rey, 811 F.2d 1453, 1457 n.5 (11th Cir. 1987). A review of the Commissioner’s response in
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II.

Hourly Rate for Paralegals
The Commissioner objects to the $100 hourly rate requested by Plaintiff for

paralegals and instead suggests a rate of $95. Def.’s Resp. 4. She cites two Middle
District of Georgia cases where such rate was deemed reasonable. See In re Mentor Corp.
ObTape Transobturator Sling Prod. Liab. Litig., No. 4:12-cv-176, 2016 WL 6393589, at
*4 (M.D. Ga. Oct. 25, 2016); News v. Chapman, No. 3:12-cv-00125, 2015 WL 5722797,
at *6 (M.D. Ga. Sept. 29, 2015). Plaintiff responds by citing another case from this
district in which $100 per hour was deemed reasonable. See Georgia State Conf. of
NAACP v. Hancock County Bd. Of Elections and Registration, No. 5:15-cv-00414-CAR,
2018 WL 1583160, at *7 (M.D. Ga. Mar. 30, 2018). In a case out of the Athens Division,
U.S. Chief District Judge Clay Land approved an hourly rate of $100 for paralegals. See
Oconee School District v. A.B., No. 3:14-cv-72-CDL, 2016 WL 93850, at *2 (M.D. Ga.
Jan. 7, 2016). This Court finds an hourly rate of $100 is reasonable.
III.

Number of Hours Billed
The Commissioner also argues that the number of hours billed is excessive based

on the typical attorney work time in EAJA cases and the “extremely narrow
approximately two-year time period” between the time Plaintiff applied for Supplemental
Security Income benefits and when she was found disabled. Def.’s Resp. 5. She requests
that the number of hours be reduced from 64.5 to 50 hours. Id. Plaintiff responds by
pointing out that the record in this case was 2,680 pages and, because it involved a

that case reveals that it was premised on the attorney not be being admitted to practice before the
court. Commissioner’s Opp’n. to Pl.’s Mot. for Atty’s Fees at 6-8, Golden v. Astrue, No. 7:10-cv138-HL (M.D. Ga. July 13, 2011).
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partially favorable decision, a complete review of the record was necessary to prepare an
argument as to why the disability onset date chosen by the Administrative Law Judge
(“ALJ’) was arbitrary. Pl’s Reply 3-4, ECF No. 29. Nevertheless, Plaintiff agrees that
the time credited for writing the reply to the Commissioner’s brief in support her decision
should be reduced from 9.9 to 4.0 hours. Id. at 4. She concedes that Mr. Riley leaving
the firm when the reply was written and Mr. Olinsky having to review the record and all
previous briefing does not justify the extra time being charged to Commissioner. Id.
The Court agrees that the hours credited to Plaintiff’s attorneys for preparing the
reply brief should be reduced to 4. Regarding the remaining EAJA hours, the Court
agrees with Plaintiff that this was not a typical case and finds any further reduction
unwarranted. Therefore, the Court reduces the number of attorney hours from 53.3 to
47.4. Thus, the amount of attorney’s fees for attorney work hours is $9,191.80.
IV.

Hours Spent Preparing Reply to Commissioner’s Response to Motion for
Attorney’s Fees
Plaintiff request attorney’s fees in the amount of $581.76 for the time spent

preparing a reply to the Commissioner’s response to her motion for attorney’s fees. Id.
However, Plaintiff has admitted that the total number of attorney work hours should be
reduced. Further, due to the different approaches taken by district courts in regards to
hourly rates for non-admitted attorneys, the Court finds that Commissioner’s position on
this issue was substantially justified. 28 U.S.C. § 2412(d)(1)(A); See Kurapti v.U.S.
Citizenship and Immigration Servs., 700 Fed. App’x 974, 976 (11th Cir. 2017) (per
curiam) (“A position of the United States is substantially justified if it is ‘justified to a
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degree that could satisfy a reasonable person’” (quoting Pierce v. Underwood, 487 U.S.
552, 565 (1988))). Therefore, the Court declines to award attorney’s fees for the time
expended by Plaintiff’s attorneys in preparing a reply to the Commissioner’s response to
her motion.
V.

Waiver of Direct Payment
Counsel for Plaintiff has attached an Affirmation and Waiver of Direct Payment of

EAJA Fees executed by Plaintiff and providing for payment directly to counsel. Olinsky
Aff. Ex. E, ECF No. 23-5. In Astrue v. Ratliff, 560 U.S. 586, 594 (2010), the United
States Supreme Court confirmed that EAJA fees are payable to litigants, not counsel, and
therefore are subject to offset where a litigant has outstanding federal debts, and therefore
the Court accepts the waiver of direct payment subject to the United States Department of
Treasury’s determination that Plaintiff holds no federal debt.
CONCLUSION
For the reasons discussed above, Plaintiff’s Motion for Attorney’s Fees under the
EAJA (ECF No. 22) is granted in part and denied in part. Attorney fees in the amount of
$10,311.80 are hereby awarded to Plaintiff, and may be paid directly to Plaintiff’s
counsel if the United States Department of Treasury determines that no federal debt is
owed. 2
SO ORDERED, this 26th day of September, 2018.
/s/ Stephen Hyles
UNITED STATES MAGISTRATE JUDGE

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$9,191.80 for 47.4 attorney work hours plus $1,120.00 for 11.2 paralegal work hours.
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