Justice v. SSA
MEMORANDUM OPINION & ORDER: 1. motion for fees and costs under Equal Access to Justice Act 20 is GRANTED, in part, and DENIED, in part. 2. plaintiff is awarded $4,406.25 in attorney's fees and $49.00 in costs under Equal Access to Justice Act. Signed by Judge Danny C. Reeves on 7/27/2015.(STC)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Civil Action No. 5: 14-286-DCR
On June 22, 2015, Wolodymyr Cybriwsky, counsel for Plaintiff Ruby Justice, filed a
motion for attorney’s fees under the Equal Access to Justice Act (“EAJA”), 28 U.S.C.
§ 2412. [Record No. 20] Specifically, he requests fees billed at a rate of $150.00 an hour for
53 hours of work, resulting in a total fee request of $7,950.00 and costs of $183.31. [Id.]
After reviewing the motion and supporting documentation, the Court will base its award for
work performed at an hourly rate of $125.00, an amount which is consistent with awards in
similar cases, and will only award attorney’s fees for time reasonably billed. Therefore, the
motion will be granted, in part, and denied, in part, as outlined below.
On July 17, 2014, the plaintiff filed a Complaint seeking review of the
Commissioner’s decision denying her claims for benefits under the Social Security Act.
[Record No. 4]
Ultimately, the Court reversed and remanded the Commissioner’s
administrative decision under sentence four of 42 U.S.C. § 405(g). [Record Nos. 18, 19]
With respect to the current motion, the plaintiff’s attorney acknowledges that the statutory
rate is $125.00 per hour; however, he contends that when the applicable cost of living
statistics are considered, the hourly rate should be increased to $150.00. [Record No. 20]
As a prevailing party, Justice is entitled to attorney’s fees under § 2412(d). The
EAJA departs from the general rule that each party to a lawsuit pays his or her own legal
fees. Howard v. Barnhart, 376 F.3d 551 (6th Cir. 2004). Section 2412(d) of the EAJA
requires payment of fees and expenses to the prevailing party in an action against the United
States unless the position of the United States was substantially justified. A Social Security
claimant who, like Justice, obtains a remand order pursuant to sentence four of 42 U.S.C. §
405(g) is considered a prevailing party for purposes of the EAJA, regardless of the outcome
of the remand. See Shalala v. Schaefer, 509 U.S. 292 (1993). Moreover, the defendant
implicitly concedes that its position was not substantially justified. See United States v.
True, 250 F.3d 410, 419 n.7 (6th Cir. 2001) (government has the burden under the EAJA to
show that its position was substantially justified). However, the Commissioner properly
disputes Cybriwsky’s requested hourly rate and the number of hours billed.
This Court maintains a duty to ensure that an award of attorney’s fees under the
EAJA is reasonable. Hensley v. Eckerhart, 461 U.S. 424, 433-34 (1983). “A reasonable fee
is one that is adequate to attract competent counsel, but . . . [does] not produce windfalls to
attorneys.” Paschal v. Flagstar Bank, 297 F.3d 431, 434 (6th Cir. 2002) (internal citation
omitted). The EAJA sets a ceiling for attorney’s fees of $125 per hour, which may be
adjusted for cost of living increases or a “special factor.” 28 U.S.C. § 2412(d)(2)(A). To
justify an award above this statutory cap, a plaintiff must show that the “prevailing market
rate” in the relevant legal community has exceeded the cap. Bryant v. Commissioner of
Social Sec., 578 F.3d 443, 450 (6th Cir. 2009). This showing requires the plaintiff to
“produce satisfactory evidence – in addition to the attorney’s own affidavits – that the
requested rates are in line with those prevailing in the community for similar services by
lawyers of reasonably comparable skill, experience, and reputation.” Id. (citation omitted).
Absent this showing, the district court need not consider whether the cost of living may have
increased since the EAJA became law. Id.
Here, counsel for the plaintiff acknowledges that “past E.A.J.A. awards here in the
Eastern District of Kentucky generally have not been in excess of the $125.00 base rate.”
[Record No. 20-1, p. 2] Regardless, he requests an hourly rate of $150.00. In support of this
request, counsel submits the June 20, 2003, Affidavit of Attorney Alvin D. Wax in which
Wax states that his customary fee for social security cases is between $150.00 and $200.00.
[Record No. 20-2] The plaintiff has also provided two of Wax’s fee awards. [Id.] The first
is an order issued by United States District Judge Joseph Hood in 2003, awarding Wax
$144.20 per hour. However, Judge Hood specifically found this rate appropriate because the
case required special expertise in an evolving area of law. The second fee award is an
incomplete Report and Recommendation from the United States District Court for the
Western District of Kentucky. [Id.] The Court cannot consider this document because
portions of it are missing.
This scant evidence does not suffice to meet the plaintiff’s burden of demonstrating
that the prevailing market rate in the Eastern District of Kentucky exceeds the statutory cap.
The plaintiff’s attorney has not offered any recent decisions from this Court awarding fees
above the statutory cap. Likewise, he has failed to show that this case involved a novel issue
or otherwise required special expertise. In fact, the plaintiff’s attorney has submitted the
exact same proof in numerous cases, and this Court has repeatedly found it to be insufficient.
See, i.e., Hall v. Colvin, 2015 U.S. Dist. LEXIS 46225 (E.D. Ky. Apr. 9, 2015); Lay v.
Astrue, 2012 U.S. Dist. LEXIS 169501 (E.D. Ky. Nov. 29, 2012); Kalar v. Astrue, 2012 U.S.
Dist. LEXIS 97559, *1-2 (E.D. Ky. July 13, 2012). The exhibits the plaintiff’s attorney has
submitted do not meet the burden of justifying his request for reimbursement at $150.00 per
hour. Because he has not shown that the prevailing market rate exceeds the statutory cap, the
Court need not address the cost of living arguments. Accordingly, the fee award will be
based on an hourly rate of $125.00. Id.
The Court now turns to the number of hours claimed by the plaintiff’s counsel. Under
the EAJA, attorneys will not receive compensation for hours “that were not reasonably
expended.” Hensley, 461 U.S. at 434. This requires the Court to cull hours that would be
unreasonable for an attorney to bill his client and thus equally unreasonable to bill the
Commissioner. Id. It is the fee-applicant’s burden to establish that the hours for which he
seeks compensation were reasonably expended. Id. at 437. To meet this burden, he must
present sufficiently clear billing records. Hours that are “excessive, redundant, or otherwise
unnecessary” will be stricken. Id. The defendant objects to several of the requested hours as
improper billing for clerical work, travel time, and expenses relating to Cybriwsky’s inability
to meet Court-imposed deadlines. [Record No. 21]
As the defendant correctly notes, purely clerical tasks are not compensable under the
EAJA. See Missouri v. Jenkins, 491 U.S. 274, 288 n.10 (1989). In the present case, the
plaintiff has billed for several clerical activities, including: receiving and preparing
summons, preparing and filing proof of service, faxing documents, and scheduling hearing
dates. [Record No. 20-1, pp. 6-9] These tasks are not compensable, regardless of who
Therefore, a total of 1.0 hour will be subtracted from the plaintiff’s
requested time for the clerical activities billed on the following dates: 07/07/14, 07/17/14,
07/29/14, 11/08/14, and 02/09/15. [Id.]
Next, the Commissioner contends that the plaintiff’s request for fees for specific tasks
appears to be unreasonable, given the hours claimed for this work. In particular, Cybriwsky
indicates that he spent .75 hours “Filing [Justice’s] Motion for IFP […] and service
Documents with appropriate orders”; .8 hours on the “Electronic receipt of USDC Case
Briefing Schedule with attached documents”; 12.00 hours reviewing the administrative
transcript; and 1.00 hour on the “Electronic Receipt of USDC Order denying Plaintiff’s
Motion to Leave for Excess Pages, Denying Summary Judgment Motion and scheduling
Motion Hearing on Extension of Time.” [Record No. 20-1, pp. 7-8] Because these billed
hours are unreasonable in relation to the work performed, the Court will reduce the fee award
by 8.25 hours to reflect the amount of time reasonably attributable to counsel’s activities.
The Court will not reduce the fee award for activities that involved communication with the
plaintiff and are neither clerical nor excessive.
Finally, and most troublingly, Cybriwsky billed 8.5 hours and $134.31 in travel costs
for his appearance at the hearing held on December 17, 2014. [Record No. 20-1, p. 8] In
anticipation of the hearing, the Court advised counsel to be prepared to address “his inability
to meet Court-imposed deadlines.” [Record No. 14] The time spent parsing Cybriwsky’s
dilatory habits is not time reasonably expended in furtherance of his client’s interests. A
Court may properly reduce the amount of fees awarded, or even deny the award, if the
prevailing party engages in conduct that unreasonably protracted the final resolution of the
matter. See 28 U.S.C. § 2412(d)(1)(C). Accordingly, these hours will not be included in the
attorney’s fees award.
The Court has conducted an independent review of the materials submitted by counsel
and the record in general. Based on this review, the Court concludes that counsel reasonably
expended 35.25 hours under the statute. Accordingly, based on the reduction of the hourly
rate to $125.00 per hour, it is hereby
ORDERED as follows:
The motion for fees and costs under the Equal Access to Justice Act [Record
No. 20] is GRANTED, in part, and DENIED, in part.
The plaintiff is awarded $4,406.25 in attorney’s fees and $49.00 in costs under
the Equal Access to Justice Act. 28 U.S.C. § 2412(d).
This 27th day of July, 2015.
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