Page v. SSA
Filing
34
MEMORANDUM OPINION AND ORDER: It is ordered that Pla's 25 Motion for Attorney Fees is GRANTED IN PART and DENIED IN PART. Pla is awarded $2273.75 for atty time and $2785 for law clerk time for total of $5058.75. A check for this amt minus any offset for pre-existing debts owed by pla to USA shall be made payable to the pla and mailed directly to her counsel. Signed by Judge G. Wix Unthank on 6/28/2011. (SCD)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON
CIVIL ACTION NO. 09-210-GWU
MARTHA J. PAGE,
VS.
PLAINTIFF,
MEMORANDUM OPINION AND ORDER
MICHAEL J. ASTRUE,
COMMISSIONER OF SOCIAL SECURITY,
DEFENDANT.
INTRODUCTION
Counsel for the plaintiff has filed a motion for an award of attorneys’ fees
under 28 U.S.C. § 2412(d), the Equal Access to Justice Act (EAJA), seeking
$172.50 per hour for 22.79 hours of work on the successful appeal, along with
$125.00 per hour for 53.10 hours of law clerk time, representing a total fee of
$10,568.78. The defendant objects to the hourly rates and maintains that the hours
charged are excessive.
APPLICABLE LAW
A court must calculate an award of fees under EAJA “based on prevailing
market rates for the kind and quality of the services performed.” 28 U.S.C. §
2412(d)(2). There is a statutory cap of $125.00 per hour for the legal services, but
a court is free to award reasonable fees at any hourly rate below the cap. Kerin v.
U.S. Postal Service, 218 F.3d 185 (2d Cir. 2000). Additionally, cost of living and
“special factors” may justify increasing the rate above the cap. 28 U.S.C. §
2412(d)(2).
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Reasonable fees are those, according to the Supreme Court, “in line with
those prevailing in the community for similar services . . . of reasonably comparable
skill, experience and reputation.” Blum v. Stenson, 465 U.S. 886, 895 n. 11 (1984).
In making this determination, a court can look to evidence of legal fees charged in
the same geographic area for the pertinent area of practice, as well as take judicial
notice of the historical fee reimbursement rate in the district. London v. Halter, 134
F.Supp. 2d 940, 941-942 (E.D. Tenn. 2001). Nevertheless, the community or
geographic area concept is fluid--the Sixth Circuit Court of Appeals has also
discussed “prevailing market rates” as involving the metropolitan area in which
another Social Security appeal was brought. Chipman v. Secretary of Health and
Human Services, 781 F.2d 545, 547 (6th Cir. 1986). In addition, the Supreme Court
has noted that the existence of the statutory cap (currently $125.00) on EAJA fees
suggests that Congress thought this amount sufficient reimbursement for lawyers’
fees, even if it should happen that “market rates” for all lawyers in the nation were
higher.
Pierce v. Underwood, 487 U.S. 552, 572 (1988), citing 28 U.S.C. §
2412(d)(2)(A)(ii) (“attorney fees shall not be awarded in excess of $125.00 per hour
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.”) (emphasis added).1 The burden is on the plaintiff to provide
1
At the time of Pierce, the cap was $75.00. 487 U.S. at 555.
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09-210 Martha J. Page
evidence that the rates he requests are in line with appropriate community rates.
Blum, 465 U.S. at 895.
After the Court considers the prevailing market rate issue, it must next
consider whether an increase in the fee level above the cap is justified based on
cost of living increases. Begley v. Secretary of Health and Human Services, 966
F.2d 196, 200 (6th Cir. 1992). Adjustments for increases in the Consumer Price
Index are left to the discretion of the district court; there will be no abuse of
discretion in refusing to award a cost of living-related increase, however, even if cost
of living has risen since the EAJA hourly rate levels were set by statute. Id.
In its discretion, a court may also determine to issue an award of fees
exceeding the statutory cap if a special factor, such as the limited availability of
qualified attorneys for the proceedings involved, justifies a higher rate. 28 U.S.C.
§ 2412(d)(2)(A). However, this term has been fairly narrowly interpreted by the
Supreme Court. Pierce v. Underwood, 108 S.Ct. 2541, 2544 (1988) (referencing
an example of patent attorneys and stating that special factors cannot be applicable
to a broad spectrum of litigation). Social Security benefit practice as a whole is not
beyond the grasp of a competent practicing attorney and is not necessarily a
practice specialty on the level which might justify fee enhancement. Chynoweth v.
Sullivan, 920 F.2d 648, 650 (10th Cir. 1990).
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09-210 Martha J. Page
DISCUSSION
A. Prevailing Market Rate
Counsel for the plaintiff asserts that he is entitled to more than the prevailing
market rate for the Central Division of the Eastern District of Kentucky, which this
court has held is currently $125.00 per hour. See, e.g., McKinney v. Astrue, No.
5:08-309-GWU (July 8, 2009). He notes that in McKinney, the undersigned cited
with approval the case of Hadix v. Johnson, 65 F.3d 532, 535 (6th Cir. 1995), which
recognizes that in some circumstances an “out-of-town specialist” may be required
as counsel in a particular case. In determining the reasonableness of the fee
petition, the court must determine “(1) whether hiring the out-of-town specialist was
reasonable in the first instance, and (2) whether the rates sought by the out-of-town
specialist are reasonable for an attorney of his or her degree of skill, experience or
reputation.” Id.
On the threshold issue of whether it was imperative for the plaintiff to hire an
attorney from outside the district, counsel asserts that he was “contacted by
attorneys in Kentucky specifically because no other attorney was willing to accept
and represent this . . . claimant in court.” Plaintiff’s Reply in Support of Her
Application for Attorneys’ Fees Under the Equal Access to Justice Act, Docket Entry
No. 33, p. 3. He added that he was “working on getting an affidavit from local
counsel.” Id. Although the court has held the record open for several months, no
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such affidavit has been submitted.2 Therefore, although the court remains open to
evidence that non-attorney representatives have difficulty finding members of the
Kentucky bar who will accept referrals of Social Security appeals, it must find that
the matter remains not proven.
Since the first prong of Hadix has not been met, it is unnecessary to reach
counsel’s arguments regarding the reasonableness of his requested reimbursement
rates. The court finds no basis for departing from the EAJA statutory cap of
$125.00 in the Central Division of this district.
Regarding the reimbursement for law clerk hours spent on the appeal, the
court is likewise unpersuaded that the requested rate of $125.00 per hour is
appropriate in this district. Therefore, the court continues to find that $100.00 per
hour is the correct rate for this service, consistent with McKinney.
B. Number of Hours Claimed
Having established reasonable hourly rates, it remains to decide whether
some of the time claimed is unnecessary or duplicative, or expended on purely
clerical activities.
The Commissioner attacks the claimed hours from both a general and
specific point of view. Generally, he asserts that “the five individuals working on this
An affidavit from a Michigan non-attorney Social Security representative was
submitted, but it speaks only to conditions in that state.
2
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case should not have required 74.89 hours to complete their work on this case,” and
recommends a reduction to 35 hours. Commissioner’s Opposition to Plaintiff’s
Application for Attorneys’ Fees Under the Equal Access to Justice Act, Docket Entry
No. 31, p. 6. Specifically, he requests further reductions for matters alleged to be
purely clerical.
As an initial matter, the Commissioner is mistaken in citing the case of Hayes
v. Secretary of Health and Human Services, 923 F.3d 418 (6th Cir. 1990) as
representing a finding that “[i]t is the opinion of this Court that the average number
of hours for an attorney to work on a social security case ranges from 30 to 40
hours.” Id. at 420, cited in Commissioner’s Opposition, p. 5. The Hayes panel was
quoting the district court opinion which was the subject of the appeal, and did not
endorse the view put forward by the district judge.
Nevertheless, the total of 74.89 attorney and law clerk hours requested in this
case is extraordinary, in the experience of this court, which extends to over a quarter
of a century of reviewing social security fee petitions. It is rare for the court to
approve a fee representing more than approximately 50 hours, except in cases of
very unusual complexity. Even in McKinney ,supra, the court felt it was being
generous in allowing a total of 48.6 hours. Id., p. 8. The current case was not of a
significantly greater degree of complexity, with a 425 page administrative transcript
and no novel legal issues presented.
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In particular it is difficult to comprehend how one of the law clerks, Suzanne
Blaz, could have spent 48.50 hours (more than six 8-hour days) reviewing an
administrative transcript of this length and drafting the brief, only to have attorney
Marcie Goldbloom expend another 7.58 hours on editing and revision. The court
believes that this was at least twice as long as experienced professionals should
have spent at these tasks, and therefore will reduce the requested reimbursement
for these items by 50 percent (24.25 law clerk hours and 3.79 attorney hours).
In addition, some minor reductions requested by the Commissioner for
clerical tasks totaling 0.81 attorney hours and 0.85 law clerk hours are well taken.
C. Validity of the Plaintiff’s Assignment of Fees
Although the plaintiff executed an assignment to her attorney of any fees
awarded under EAJA, the Commissioner notes that the Supreme Court’s ruling in
Astrue v. Ratliff, 130 S.Ct. 2521, 177 L.Ed. 2d 91 (2010) establishes that the award
belongs to the plaintiff. The Commissioner further raises 31. U.S.C. § 3727 as a bar
to the assignment of the fee. Consistent with prior rulings, e.g., Dobbs v. Astrue,
No. 6:09-418-GWU (March 23, 2011), the undersigned notes that there are certain
judicially-recognized exceptions to § 3727 and its predecessors, but in view of the
lack of direction from appellate courts on the issue of validity of the application of
§ 3727, no ruling on the validity of the assignment in this case will be made.
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Counsel requests that, at a minimum, the fee check should be sent in care
of his office, a procedure to which the Commissioner has had no objection in
previous cases.
ORDER
Accordingly, the court being fully advised,
IT IS HEREBY ORDERED that the Plaintiff’s Application for Attorneys’ Fees
Under the Equal Access to Justice Act is GRANTED IN PART and DENIED IN
PART; the plaintiff is awarded $2,273.75 (18.19 hours x $125.00 per hour) for
attorney time and $2,785.00 (27.85 hours x $100.00 per hour) for law clerk time, for
a total fee of $5,058.75. A check for this amount, minus any offset for pre-existing
debts owed by the plaintiff to the United States, shall be made payable to the
plaintiff and mailed directly to her counsel at the following address: Frederick J.
Daley, Jr., Daley DeBofsky & Bryant, 55 W. Monroe St., Suite 2440, Chicago, Illinois
60603.
This the 28th day of June, 2011.
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