TYRRELL v. SOCIAL SECURITY ADMINISTRATION COMMISSIONER

Filing 27

REPORT AND RECOMMENDED DECISION re 24 MOTION for Attorney Fees Pursuant to EAJA filed by LAWRENCE TYRRELL. Objections to R&R due by 4/17/2018. By MAGISTRATE JUDGE JOHN C. NIVISON. (CWP)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
LAWRENCE TYRRELL,
Plaintiff,
v.
NANCY A. BERRYHILL, SOCIAL
SECURITY ADMINISTATION
ACTING COMMISSIONER,
Defendant

)
)
)
)
)
)
)
)
)
)
)

2:16-cv-00628-JAW

RECOMMENDED DECISION ON APPLICATION FOR ATTORNEY FEES
Plaintiff Lawrence Tyrrell 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 $3,251.77. (EAJA Application, ECF No. 24; Ex. A, ECF No. 24-1.)
Defendant contends the award should be reduced because Plaintiff’s requested rate for
paralegal time is greater than the standard rate in this District and because Plaintiff is not
entitled to recover for all of the claimed attorney time. (Defendant’s Opposition, ECF No.
25.)
Following a review of the record and after consideration of the parties’ arguments,
I recommend the Court grant the application in the amount of $3,229.77.
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. A fee-shifting 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 November 13, 2017, the Court vacated Defendant’s decision on Plaintiff’s
application for disability insurance benefits under Title II of the Social Security Act, and
remanded for further administrative proceedings. (Judgment, ECF No. 23.) 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
argues the requested paralegal hourly rate is unreasonable, and that some of the claimed
attorney time is not recoverable.
Defendant argues that Plaintiff’s requested rate of $110 per hour for paralegal time
should be reduced to $90, because $90 is the established rate in this District. Citing this
Court’s recent decision in Pelletier v. SSA Comm’r, 1:17-cv-0073-NT (D. Me., Dec. 20,
2017), Plaintiff concedes that she has not demonstrated that an hourly rate in excess of $90
2

is recoverable. (Reply at 1.) The 1.1 hours of paralegal time claimed by Plaintiff, therefore,
shall be awarded at the rate of $90 per hour. The adjustment reduces the amount claimed
by $22.
Defendant argues the Court should deduct 1.8 hours of attorney time on tasks
Defendant contends are not required to be performed by an attorney, or at the full attorney
rate. (Opposition at 3 – 5.) Defendant challenges the nine-tenths of an hour of attorney
time on December 20, 2016, for the drafting and filing of the complaint and summons, the
preparation of a letter and motion for leave to proceed in forma pauperis, and the review
of the Court’s order granting the motion. Defendant also challenges nine separate other
entries, each for one-tenth of an hour at the attorney rate, for tasks such as “receipt and
review of signed forms from client,” letter preparation, review of court emails, and review
of the judgment and order. Defendant, relying on this Court’s decisions in Pelletier v. SSA
Comm’r, No. 1:10-cv-00438-DBH, 2011 WL 5545658, at *2, and Haskell v. SSA Comm’r,
No. 1:11-cv-00289-GZS, 2012 WL 1463300, at *2, contends that the tasks do not require
the attorney’s time at the full attorney rate.
Defendant’s argument is unpersuasive. Neither Pelletier nor Haskell established a
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. Indeed, counsel is required to
remain aware of the developments in a case. Rather, the cases reinforce the Court’s
obligation to scrutinize the amount of time devoted to various tasks to determine whether
the tasks can more appropriately be accomplished in less time by a person at a lower hourly
3

rate. Here, the challenged time devoted by counsel to the tasks is modest and reflects tasks
that are consistent with counsel’s obligations to his client and the court. The requested
attorney time is thus not unreasonable.
Conclusion
For the reasons set forth above, I recommend the Court grant Plaintiff’s EAJA
Application in the amount of $3,229.77.
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 3rd day of April, 2018

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

4