Buckley v. Social Security Administration

Filing 25

ORDER AND REASONS granting in part 22 Motion for Attorney Fees, as set forth in document. Signed by Chief Judge Sarah S. Vance on 10/3/2013. (mmm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
DWANYETTA BUCKLEY

CIVIL ACTION

VERSUS

NO: 12-2691

CAROLYN W. COLVIN,
COMMISSIONER OF SOCIAL SECURITY

SECTION: R(1)

ORDER AND REASONS
Before the Court is plaintiff Dwanyetta Buckley's motion for
attorneys' fees.1 For the following reasons, the Court grants
plaintiff's motion in part.
Plaintiff filed a complaint for judicial review in this
Court after the Social Security Administration (SSA) issued a
final decision denying plaintiff's claim for benefits under the
Social Security Act.2 On July 9, 2013, the defendant,
Commissioner of the SSA ("Commissioner") filed an unopposed
motion to remand the case to the Commissioner pursuant to the
fourth sentence of 42 U.S.C. § 405(g).3 The Court granted the
motion in an Order dated July 30, 2013.4

1

R. Doc. 22.

2

R. Doc. 1.

3

R. Doc. 18.

4

R. Doc. 21.

Plaintiff now seeks attorneys' fees, arguing that she was a
"prevailing party" within the meaning of the Equal Access to
Justice Act (EAJA), 28 U.S.C. § 2412. Plaintiff requests an award
of $6938.82. The Commissioner does not dispute that plaintiff is
a "prevailing party" entitled to recover reasonable attorneys'
fees, but objects both to plaintiff's counsel's requested hourly
rate and to the number of hours for which he seeks remuneration.
Under the EAJA, the amount of fees awarded to a prevailing
party should be "based upon prevailing market rates for the kind
and quality of the services furnished, except that . . . 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(d)(2)(A); see also Yoes v. Barnhart, 467 F.3d 426, 426-27
(5th Cir. 2006) (per curiam) (noting that courts may increase the
rate beyond the statutory cap if increases in the cost of living
so warrant). A district court's attorneys' fees award under the
EAJA is reviewed "only for abuse of discretion." Id. at 427.
Plaintiff requests an hourly rate of $185.53 for the work
counsel performed in this matter, based on the current Consumer
Price Index (CPI) for the "South urban region." The Court finds
plaintiff's requested rate excessive. Even if plaintiff had
provided authority for the proposition that courts may use data
from the CPI to determine a reasonable hourly rate under the EAJA
(and she has not), the CPI for an entire region of the United

States would not necessarily be a valid indicator of the market
price for legal work on Social Security cases in New Orleans. In
fact, it would likely be a quite poor indicator: the CPI for the
"South urban region" measures changes in the prices paid for a
"representative basket of goods and services" by urban consumers
in Texas, Oklahoma, Arkansas, Louisiana, Mississippi, Alabama,
Georgia, Florida, South Carolina, North Carolina, Tennessee,
Kentucky, Virginia, West Virginia, and Maryland. See Consumer
Price Index, U.S. Dep't of Labor Bureau of Labor Statistics,
http://www.bls.gov/cpi/home.htm (last visited Sep. 17, 2013).
Courts in this region have held that a $160.00 hourly rate
is appropriate for Social Security cases. See, e.g., Thibodeaux
v. Astrue, 914 F. Supp. 2d 789, 793 (E.D. La. 2012) ("After due
consideration of prevailing market conditions and the healthy
community of social security practitioners in this area, the
Court is inclined to implement an hourly rate of $160 for this,
and future, EAJA petitions."). "In light of these recent awards
in the district, the government's suggestion that $160 per hour
is reasonable in this case, and the plaintiff's lack of
justification for a higher rate," the Court finds that
plaintiff's counsel may recover attorneys' fees at a rate of $160
per hour. Grant ex rel. C.P. v. Colvin, No. 12-1306, 2013 WL
4508161, at *2 (E.D. La. Aug. 22, 2013).
The Commissioner also asks that plaintiff's counsel be
reimbursed for only 33.2 hours of work, as opposed to the 37.4
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requested by plaintiff. Specifically, the Commissioner objects to
plaintiff's counsel's inclusion of the following tasks in his
itemization of time:
(1)

draft IFP [in forma pauperis] forms and cover letter to
client: 0.7 hours

(2)

receipt and review of IFP forms and wage and asset
information to determine if IFP motion is supported:
0.8 hours

(3)

receipt and review of order granting IFP: 0.3 hours

(4)

preparation and mailing of service letters to U.S.
Attorney, SSA, and Attorney General: 0.8 hours

(5)

letter to U.S. Marshall requesting service of
complaint: 0.3 hours

(6)

receipt and review of executed summons return: 0.5
hours

(7)

receipt and review of Court's Order granting
Plaintiff's motion for extension of time to file her
motion for summary judgment: 0.2 hours

(8)

telephone call from U.S. Attorney regarding requesting
an extension of time: 0.3 hours

(9)

receipt and review of Commissioner's motion for
extension of time: 0.2 hours

(10) receipt and review of the Court's Order granting the
Commissioner's motion for extension of time to file:
0.1 hours
The Court finds the hours billed for these tasks to be
excessive. For example, it is unreasonable for plaintiff's
counsel to have spent nearly an hour on task (2), given that
plaintiff's counsel also spent 0.6 hours meeting with plaintiff

4

to complete the IFP forms.5 It is also unreasonable for
plaintiff's counsel to have spent a half-hour reviewing a summons
return, or nearly an hour preparing and mailing a service letter.
The Court finds that the number of hours billed for the abovelisted tasks should be reduced by one-half, to 2.1 hours. See
Hensley v. Eckerhart, 461 U.S. 424, 434 (1983) (noting that
"hours that are excessive, redundant, or otherwise unnecessary"
must be excluded from a prevailing party's fee calculation).
Accordingly, plaintiff's counsel is entitled to recover for
35.3 hours of work at a rate of $160.00 per hour, for a total
award of $5648.00.

3rd
New Orleans, Louisiana, this _____ day of October, 2013.
_____________________________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE

5

See R. Doc. 22-2 at 1.
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