Sieber v. Social Security Administration, Commissioner of
Filing
14
MEMORANDUM AND ORDER granting in part and denying in part 11 Plaintiff's Motion for Attorney Fees and that fees be awarded in the sum of $6,311.25. Signed by District Judge John W. Lungstrum on 07/12/2018. (ses)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
LORI ANN SIEBER,
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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. 17-2630-JWL
MEMORANDUM AND ORDER
This matter is before the court on plaintiff’s Motion for Attorney Fees (Doc. 11)
(hereinafter Pl. Mot.).
The Acting Commissioner (hereinafter Commissioner) does not
oppose a fee award, but argues that the amount requested is unreasonable because an
unreasonable amount of time was expended in preparing Plaintiff=s Social Security Brief.
(Doc. 12) (hereinafter Comm’r Resp.)
The court finds the time billed is excessive.
Therefore, it PARTIALLY GRANTS Plaintiff=s motion for 33.00 hours of attorney fees
at the rate of $191.25, resulting in a fee award of $6,311.25 as explained hereinafter.
I.
Background
Plaintiff sought review of the Commissioner=s decision denying disability
insurance benefits. (Doc. 1). The Commissioner answered and filed the transcript of
record with the court. (Doc. 6). Almost a month after Plaintiff filed her Social Security
Brief (Doc. 7), the Commissioner filed an “UNOPPOSED MOTION FOR REMAND
PURSUANT TO SENTENCE FOUR OF 42 U.S.C. § 405(g),” confessing (without
specifying) error in the decision below. (Doc. 8). Plaintiff now seeks payment of
attorney fees pursuant to the EAJA.1 (Pl. Mot.).
Plaintiff=s counsel asserts that Plaintiff is the prevailing party as defined in the
EAJA, that the Commissioner’s position was not substantially justified, that no
circumstances present in this case make an award unjust, that he expended 39.25 hours in
this case, and that the fee cap under the EAJA, adjusted for cost of living increases, is
$191.25 per hour. (Pl. Mot. 1-2). He argues, therefore, that a reasonable fee in this case
is $7,506.00. Id. at 3-4.
The Commissioner argues that the 37.25 hours billed for drafting Plaintiff Social
Security Brief is excessive. (Com’r Resp. 1). Specifically, she argues that Plaintiff’s
1
In relevant part, the EAJA states:
(d)(1)(A) ... a court shall award to a prevailing party other than the United
States fees and other expenses ... unless the court finds that the position of
the United States was substantially justified or that special circumstances
make an award unjust....
(2)(A) For the purposes of this subsection-. . . (ii) attorney fees shall not be awarded in excess of $125 per hour unless
the court determines that an increase in the cost of living or a special factor
... justifies a higher fee.
28 U.S.C. § 2412.
request is unreasonable because it includes time not properly billable to a client or, by
extension, to an adversary. Id. at 2. She argues that 37.25 hours reviewing the record
and preparing a 26-page opening brief is excessive for an experienced Social Security
practitioner, with a record only slightly larger than typical, and relying on standard
authorities, and routine arguments. Id. at 3-4. She also argues that “to the extent that
counsel may assert that the expenditure of time was necessary for another attorney at the
firm to come up to speed on the matter, this is not time properly billable to a paying
client.” Id. at 4 (citing Robinson v. City of Edmond, 160 F.3d 1275, 1281 (10th Cir.
1998)).
II.
Legal Standard
The court has a duty to evaluate the reasonableness of every fee request. Hensley
v. Eckerhart, 461 U.S. 424, 433-34 (1983). The EAJA, 28 U.S.C. § 2412, 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. Gilbert v. Shalala, 45 F.3d 1391, 1394 (10th
Cir. 1995) (citing Estate of Smith v. O’Halloran, 930 F.2d 1496, 1501 (10th Cir. 1991)).
The maximum fee of $125 per hour provided in § 2412(d)(2)(A), if awarded, may be
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). As the Commissioner points out, the
Tenth Circuit has explained that a court “should approach this reasonableness inquiry
much as a senior partner in a private law firm would review the reports of subordinate
attorneys when billing clients.” (Comm’r Resp. 2) (quoting Robinson, 160 F.3d at
1281).
The party seeking attorney fees bears the burden of proving that its request is
reasonable and must “submit evidence supporting the hours worked.” Hensley, 461 U.S.
at 433, 434. The objecting party has the burden to challenge, through affidavit or brief,
with sufficient specificity to provide notice to the fee applicant the portion of the fee
petition which must be defended. Bell v. United Princeton Prop., Inc., 884 F.2d 713,
715 (3d Cir. 1989).
III.
Analysis
In her Reply, Plaintiff’s counsel explained that the attorney who had represented
her before the Commissioner “has not represented claimants before the [federal district
court] and has no experience writing arguments at that level.” (Doc. 13, p.2) (hereinafter
Pl. Reply). Therefore, he explained, “a separate review of the record before the Court
was required by [plaintiff’s counsel before the district court] in order for them to
adequately draft Plaintiff’s initial brief. This was specifically necessary in order for
counsel to outline the medical evidence for the Court [sic] as well as reference relevant
portions of the record in the argument sections of the brief.” Id. He concluded that
“[w]hile it may be unfortunate for Defendant that counsels’ office has separate attorneys
that represent claimants before [the Social Security Administration and the federal district
court], there is nothing that is detrimental to the client where her counsel specialize with
regard to different levels of representation.” Id.
Plaintiff’s counsel’s argument reveals the unreasonableness of the fees requested.
While there may be some benefit to the client where attorneys within a firm specialize in
different levels of representation, as the Commissioner argues it would be improper for a
firm to charge its client for the time spent in bringing new attorneys up to speed on a case
where the firm chooses to use different counsel in different phases of the litigation. See,
e.g., Lowerre v. Colvin, No. 12-218E, 2014 WL 3529987, at *2 (W.D. Pa. July 15, 2014)
(unpublished) (disallowing “duplicative work created by two attorneys leaving counsel’s
firm and each newly assigned attorney becoming familiar with the case”). Where it
would not be appropriate to charge a client for time expended, it is not reasonable to
charge the client’s adversary. Robinson, 160 F.3d at 1281 (a court examines whether the
tasks at issue would be billed to a paying client).
Counsel’s time records reveal that on March 20 and 21, 2018 counsel spent 8.5
hours reviewing the transcript of this case. (Pl. Mot., Attach. 3). Another attorney
spent .75 hours reviewing the draft brief and the ALJ’s decision on March 27, 1 hour
reviewing and summarizing the transcript on March 28, 1.25 hours reviewing and
summarizing testimony on March 29, and .75 hours on March 30 to finish the review,
resulting in a total of 12.25 hours reviewing and summarizing the transcript of this case.
Id. The court recognizes that some of that time would have been necessary even if the
attorneys had represented Plaintiff before the Commissioner, but it finds that 6.25 hours
of that time is excessive.
In sum, the court finds that a reasonable amount of time expended before this
court is 33.00 hours (39.25 hours less 6.25 hours). At a rate of $191.25 per hour, the
court finds a total fee award of $6,311.25 is reasonable.
IT IS THEREFORE ORDERED that Plaintiff=s “Motion for Attorney Fees”
(Doc. 11) be GRANTED in part, and DENIED in part, and that fees be awarded in the
sum of $6,311.25.
Dated this 12th day of July 2018, at Kansas City, Kansas.
s:/ John W. Lungstrum
John W. Lungstrum
United States District Judge
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