Wells v. Social Security Administration, Commissioner of

Filing 21

MEMORANDUM AND ORDER granting in part 17 Motion for Attorney Fees and attorney fees in the amount of $6,753.95 shall be awarded in accordance with the Equal Access to Justice Act. Signed by District Judge John W. Lungstrum on 04/18/2018. (ses)

IN THE UNITEDf STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

TREVOR JAMES WELLS,

)
)
Plaintiff,
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v.
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)
NANCY A. BERRYHILL,
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Acting Commissioner of Social Security )
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Defendant.
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___________________________________ )

CIVIL ACTION
No. 16-2803-JWL

MEMORANDUM AND ORDER

This matter is before the court on Plaintiff’s Motion for Attorney Fees Under the
Equal Access to Justice Act (EAJA) (28 U.S.C. § 2412). (Doc. 17) (Pl. Mot.). Plaintiff
seeks $6,753.95 in attorney fees. Id. The Acting Commissioner (hereinafter
Commissioner) admits that a fee award is proper but argues that the amount requested is
unreasonable because the time claimed includes time not properly chargeable. She
suggests that no more than $5,500.00 would be a reasonable fee. (Comm’r Response 5).
The matter is fully briefed and ripe for decision.
I.

Background
Plaintiff’s counsel has established by affidavits attached to his motion that: (1) he

represents Plaintiff in this matter, (2) the fee cap under EAJA, adjusted for cost of living

increases, is $192.68 per hour for 2016 and $196.79 for 2017 and 2018, and (3) he
expended three and eight-tenths hours in representing Plaintiff in 2016 and thirty and sixtenths hours representing Plaintiff in 2017 and 2018. (Pl. Mot. & Attach 1).
The Commissioner does not dispute the fee cap adjustment, and the court finds
that $192.68 and $196.79 are reasonable rates under the EAJA during the applicable
periods. The Commissioner argues that Plaintiff’s counsel wrongly seeks fees for clerical
work or administrative work performed by counsel at the same rate as legal work and that
he has complicated the problem by his use of block billing—lumping multiple tasks into
a single entry of time, which although not per se prohibited may prevent the court from
identifying the reasonable time spent on compensable tasks. (Comm’r Response 4)
(citing Cadena v. Pacesetter Corp., 224 F.3d 1203, 1215 (10th Cir. 2000)).
II.

Legal Standard
The court has a duty to evaluate the reasonableness of any fee request. Hensley v.

Eckerhart, 461 U.S. 424, 433-34 (1983). The EAJA, 28 U.S.C. § 2412, applies in Social
Security cases. Section 2412(d)(1)(A) of the Act requires that a court award a fee to a
prevailing plaintiff unless the court finds that the position of the United States was
substantially justified. Estate of Smith v. O’Halloran, 930 F.2d 1496, 1501 (10th Cir.
1991). The test for substantial justification is one of reasonableness in law and fact.
Gilbert v. Shalala, 45 F.3d 1391, 1394 (10th Cir. 1995). The Commissioner bears the
burden to show substantial justification for her position. Id.; Estate of Smith, 930 F.2d at
1501. The maximum fee of $125 provided in § 2412(d)(2)(A), if awarded, may be
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adjusted for increases in the cost of living. Harris v. R.R. Ret. Bd., 990 F.2d 519, 521
(10th Cir. 1993); 28 U.S.C. § 2412(d)(2)(A)(ii).
III.

Discussion
The court agrees with the Commissioner that “Ramos[ v. Lamm, 713 F.2d 546,

553 (10th Cir. 1983)] admonishes attorneys who wish to recover attorneys’ fees not to
utilize the practice of block billing, because block billing does not precisely delineate
‘how ... hours were allotted to specific tasks.’” Cadena, 224 F.3d at 1215 (quoting
Ramos, 713 F.2d at 553). However, as the court found in Cadena, Plaintiff here has
provided billing records sufficient to allow “the court to determine the time allotted by
h[is] attorneys to specific tasks and the reasonableness of that time.” Cadena, 224 F.3d at
1215. Plaintiff is correct that it is appropriate for an attorney to supervise and follow up
on subordinates, to confer with clients regarding decisions in and the progress of the case,
and to calendar issues as reminders of further action needed or documentation of actions
taken. The court finds that $6,753.95 is a reasonable attorney fee in this case.
The court notes one issue regarding award of statutory fees of which the parties
need reminding. It does not appear that the parties made a good faith attempt to reach
agreement on fees before raising the issue to the court. “A request for attorney’s fees
should not result in a second major litigation.” Hensley, 461 U.S. at 437. Therefore, the
district has enacted D. Kan. Rule 54.2 which requires opposing counsel to consult to
reach an agreement regarding fees. The rule is designed “to save the parties time and

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money in litigating unnecessary issues.” Lintz v. American Gen. Fin., Inc., 87 F. Supp.
2d 1161, 1165 (D. Kan. 2000).
In his motion, Plaintiff states that he contacted the Commissioner “about this
anticipated filing,” but that he had no response from defense counsel or the Social
Security Administration. (Pl. Mot. 1). This statement is insufficient to meet the
requirements of the local rule which states that the party seeking statutory fees “must
promptly initiate consultation,” and, where the parties do not agree on fees, must file a
statement of consultation setting “forth the date of consultation, the names of those who
participated, and the specific results achieved.” D. Kan. R. 54.2. It is Plaintiff’s
responsibility as the party seeking fees to comply with the requirements of the local rule.
However, it is also the Commissioner’s responsibility to participate in good faith in the
process, and it looks like neither party did any more than pay lip service to the rule. The
court expects more. The rule contemplates that the moving party may file his motion for
fees, and may then take up to an additional 30 days before either the parties file a
stipulation and request for order, or the moving party files a statement of consultation and
a “memorandum setting forth the factual basis for each criterion that the court is asked to
consider in making an award.” Id. at (b), (c). If the moving party promptly initiates
consultation, there should be no reason good faith consultation will not be had before the
statement, memorandum, and supporting documents must be filed.

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IT IS THEREFORE ORDERED that Plaintiff’s motion (Doc. 17) is GRANTED
in part, and attorney fees in the amount of $6,753.95 shall be awarded in accordance with
the Equal Access to Justice Act.
Dated April 18, 2018, at Kansas City, Kansas.

s/ John W. Lungstrum
John W. Lungstrum
United States District Judge

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