HAMM v. SOCIAL SECURITY ADMINISTRATION COMMISSIONER

Filing 32

REPORT AND RECOMMENDED DECISION re 29 MOTION for Attorney Fees Pursuant to EAJA filed by GEORGE HAMM. Objections to R&R due by 5/14/2018 By MAGISTRATE JUDGE JOHN C. NIVISON. (MFS)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
GEORGE HAMM,

)
)
Plaintiff,
)
)
v.
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)
SOCIAL SECURITY
)
ADMINISTATION COMMISSIONER, )
)
Defendant
)

2:16-cv-00627-DBH

RECOMMENDED DECISION ON APPLICATION FOR ATTORNEY FEES
Plaintiff George Hamm seeks to recover attorney fees and expenses pursuant to the
Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412, following a successful appeal from
the denial of his application for benefits under the Social Security Act. Plaintiff requests
an award of $6,556.70.

(EAJA Application, ECF No. 29; Ex. A, ECF No. 29-1.)

Defendant contends the award should be reduced because the amount of attorney time is
excessive. (Defendant’s Opposition, ECF No. 30.)
Following a review of the record and after consideration of the parties’ arguments,
I recommend the Court grant the application in the amount of $6,457.55.
Legal Standard
The EAJA provides, in relevant part, that a prevailing party should receive a feeshifting award against the United States, unless the position of the United States was
“substantially justified” or “special circumstances make an award unjust.” 28 U.S.C. §
2412(d)(1)(A); Schock v. United States, 254 F.3d 1, 5 (1st Cir. 2001).

The calculation of an EAJA fee award is ordinarily based on the loadstar method.
The court determines the number of hours reasonably expended on the matter and
multiplies that figure by a reasonable hourly rate. This analysis allows adjustments to be
made for unreasonable and unproductive attorney time, and for unreasonable hourly rates.
A fee-shifting award under the EAJA is also appropriately reduced to account for the
prevailing party’s relative degree of success. The award should not compensate attorney
effort that was unsuccessful in demonstrating unreasonable government action. McDonald
v. Sec’y of HHS, 884 F.2d 1468, 1478 – 79 (1st Cir. 1989).
Discussion
On December 6, 2017, the Court vacated Defendant’s decision on Plaintiff’s
application for disability insurance benefits and supplemental security income benefits
under Titles II and XVI of the Social Security Act, and remanded for further administrative
proceedings. (Judgment, ECF No. 28.) Defendant does not dispute that an award is
appropriate in this case, nor does Defendant argue that the award should be reduced to
account for less than complete success. Instead, Defendant contends that some of the
claimed attorney time is not recoverable or should be billed at a lower rate.
Defendant, citing this Court’s decisions in Pelletier v. SSA Comm’r, No. 1:10-cv00438-DBH, 2011 WL 5545658, at *2, and Haskell v. SSA Comm’r, No. 1:11-cv-00289GZS, 2012 WL 1463300, at *2, contends that certain tasks do not require an attorney’s
time at the full attorney rate. In particular, Defendant challenges 1.9 hours of attorney time
billed mostly in one-tenth of an hour increments for review of communications and notices
from the court and counsel. Within the challenge is also .9 of an hour for the time entry:
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“Draft and file complaint and summons, letter and motion for leave to proceed in forma
pauperis. Receipt and review of court email.”
Defendant’s argument is unconvincing. Neither Pelletier nor Haskell established
an absolute rule in this District that an attorney’s time to review notices or orders from the
court, to prepare a complaint, to prepare a motion for leave to proceed in forma pauperis,
or to review other case-related documents was not compensable at an attorney’s rate.
While the cases upon which Plaintiff relies reinforce the Court’s obligation to scrutinize
the amount of time devoted to various tasks to determine whether some tasks should more
appropriately be accomplished in less time or by a person at a lower hourly rate, the cases
do not prohibit an attorney’s recovery for the tasks identified by Defendant.
In this case, the time reflected by the challenged entries is very limited and
consistent with an attorney’s obligation to remain informed of and take appropriate action
in response to developments in a case. Regardless of whether a legal assistant could have
reviewed the same information, counsel is obligated to keep apprised of developments and
assess whether counsel should take any action in response to each development. Even if a
legal assistant first reviewed the communication or notice, at some point counsel must be
apprised of and assess the import of the communication or notice. An attorney is entitled
to be compensated at the attorney rate for that review and assessment time. The minimal
time entries reflected in counsel’s application in this case are reasonable and compensable
at the attorney rate. The time devoted to the preparation of the complaint and related filings
is similarly reasonable.

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Defendant also objects to the requested award of fees for travel time. On September
6, 2017, counsel traveled to Bangor for oral argument in four cases. In the fee application,
the billing entry is for 2 hours of attorney time for: “Travel to and from Bangor, participate
in oral argument, notes to file. (Travel prorated). Receipt and review of minute entry.”
Defendant proposes that one hour be awarded at the attorney rate for oral argument and
one hour at the paralegal rate for travel. While “[t]ravel is often a necessary incident of
litigation” and “may be reimbursed in a fee award,” travel time “ordinarily is calculated at
an hourly rate lower than that which applies to the attorney’s substantive labors.”
Hutchinson v. Patrick, 636 F. 3d 1, 29 (1st Cir. 2011). This Court’s practice is to allow
recovery of fees for travel at one-half the applicable attorney rate, regardless of the type of
case. IMS Health Corp. v. Schneider, 901 F. Supp. 2d 172, 193 (D. Me. 2012); Cushing v.
McKee, 853 F. Supp. 2d 163, 174 n.9 (D. Me. 2012); Desena v. LePage, 847 F. Supp. 2d
207, 212-13 (D. Me. 2012). Under the applicable standard, as Defendant argues, one hour
should be compensated at the hourly rate of $99 rather than the claimed amount of $198.15.
Finally, Defendant argues 3 hours of attorney time on August 29, 2017, is
duplicative of 2.75 hours of paralegal time on May 23, 2017. (Opposition at 6.) The entries
are specific to legal research and the research was relevant to a significant issue raised in
Plaintiff’s appeal. Plaintiff asserts that the effort was not duplicative, but expansive, i.e.,
counsel expended further effort by researching a legal matter in advance of oral argument.
The billing entries reflect reasonable effort and the associated time is compensable.

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Conclusion
Based on the foregoing analysis and findings, I recommend the Court grant
Plaintiff’s EAJA Application in the amount of $6,457.55.
NOTICE
A party may file objections to those specified portions of a magistrate
judge’s report or proposed findings or recommended decisions entered
pursuant to 28 U.S.C. § 636(b)(1)(B) for which de novo review by the district
court is sought, together with a supporting memorandum, within fourteen
(14) days of being served with a copy thereof. A responsive memorandum
shall be filed within fourteen (14) days after the filing of the objection.
Failure to file a timely objection shall constitute a waiver of the right
to de novo review by the district court and to appeal the district court’s order.

Dated this 30th day of April, 2018

/s/ John C. Nivison
U.S. Magistrate Judge

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