Gant v. Colvin

Filing 34

MEMORANDUM Signed by Magistrate Judge Thomas M. DiGirolamo on 12/13/2016. (cags, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

CHARLES R. GANT, JR.,

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Plaintiff,
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v.
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CAROLYN W. COLVIN,
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Acting Commissioner of Social Security,
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Defendant.
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Civil No. TMD 14-1368

MEMORANDUM
This matter is before the Court on Plaintiff’s Motion for Attorneys’ Fee Under the Equal
Access to Justice Act (the “EAJA”) (ECF No. 26), Defendant’s Opposition to Plaintiff’s Motion
for Attorney’s Fees Under the EAJA (ECF No. 29), and Plaintiff’s Reply with Amendment to
Defendant’s Opposition to Plaintiff’s Request for EAJA Fees (ECF No. 30, 32). For the reasons
stated below, Plaintiff’s Motion is GRANTED IN PART and DENIED IN PART.
Under the EAJA, a “prevailing party” in any civil action brought by or against the United
States, “including proceedings for judicial review of agency action,” is entitled to recover
reasonable fees and expenses incurred in the proceeding. 28 U.S.C. § 2412(d)(1)(A). The
prevailing party is not entitled to such fees and expenses, however, if the Court finds that the
position of the United States was “substantially justified.” Id. In this case, the parties agree that
Plaintiff is a “prevailing party” entitled to attorney’s fees under the EAJA, and the Government
does not contest that the position of the United States was not “substantially justified.” The
parties do dispute, however, the reasonableness of the number of hours of work claimed by
Plaintiff’s counsel. In his EAJA petition, Plaintiff claimed that his counsel was entitled to an

award of $4,833.50 in EAJA fees reflecting 37.48 attorney hours at a rate of $125 per hour and
1.98 legal assistant hours at a rate of $75 per hour. Pl.’s Mot., ECF No. 26. Defendant opposed
Plaintiff’s request, arguing that the total hours claimed by Plaintiff’s counsel for preparing his
Memorandum in Support of his Motion for Summary Judgment and Reply are excessive.
Defendant maintained that the Court instead should award attorney’s fees in the amount of
$3,750.00. In reply, Plaintiff now agrees to a reduction in total claimed attorney hours to 34.80
hours (but at the increased attorney rate of $190 per hour to reflect the increase in the cost of
living) for a total of $6,612.00. Plaintiff also claims 1.98 hours for the attorney’s legal assistant
to proofread and critique at an hourly rate of $125 for a total of $247.50.
Once the district court determines that plaintiffs have met the threshold
conditions for an award of fees and costs under the EAJA, the district court must
undertake the “task of determining what fee is reasonable.” “A request for
attorney’s fees should not result in a second major litigation. Ideally, of course,
litigants will settle the amount of a fee.” However, “[w]here settlement is not
possible, the fee applicant bears the burden of establishing entitlement to an
award and documenting the appropriate hours expended.” Counsel “should
submit evidence supporting the hours worked,” and exercise “‘billing judgment’”
with respect to hours worked. “Hours that are not properly billed to one’s client
also are not properly billed to one’s adversary pursuant to statutory authority.”
Hyatt v. Barnhart, 315 F.3d 239, 253-54 (4th Cir. 2002) (alteration in original) (citations
omitted). “The district court is accorded ‘substantial discretion in fixing the amount of an EAJA
award,’ but is charged with the duty to ensure that the final award is reasonable.” Id. at 254
(citation omitted). “In sum, the EAJA provides that attorneys for a prevailing party should be
paid ‘for all time reasonably expended on a matter,’ but the EAJA should not ‘produce windfalls
to attorneys.’” Id. “Courts within this circuit have held . . . that in typical Social Security cases
it is reasonable for an attorney to expend between twenty and forty hours.” Roth v. Comm’r,
Soc. Sec., Civil Case No. SAG-14-62, 2015 WL 567168, at *3 (D. Md. Feb. 10, 2015) (citing

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cases and determining that spending 43.16 hours to prepare and draft plaintiff’s motion for
summary judgment was excessive).
On the other hand, “courts cannot drastically reduce awards simply because the attorney
has requested compensation for more than forty hours or make reductions with a target number
in mind.” Costa v. Comm’r of Soc. Sec. Admin., 690 F.3d 1132, 1136 (9th Cir. 2012) (per
curiam). Rather, courts “must explain why the amount of time requested for a particular task is
too high. Any other approach fails to give deference to the winning lawyer’s professional
judgment . . . .” Id. The court in Costa found that the magistrate judge’s reduction by nearly
one-third of the hours requested by the plaintiff’s counsel was improper because the magistrate
judge merely found that the issues in the case were not novel or complex and that the brief was
not very long. Id. at 1136-37. The magistrate judge in that case also did not explain why the
amount of time that he ultimately allotted to the plaintiff’s counsel’s preparation of supplemental
and reply memoranda was reasonable. Id. at 1137.
Here, Plaintiff’s counsel claims 1.98 hours for a legal assistant to proofread and critique
the motion for summary judgment.

“[T]asks of a clerical nature are not compensable as

attorney’s fees,” however. Mobley v. Apfel, 104 F. Supp. 2d 1357, 1360 (M.D. Fla. 2000). The
Court thus disallows 1.98 legal assistant hours from the time for the preparation of Plaintiff’s
motion for summary judgment. See Mitchell v. Comm’r, Soc. Sec., No. DKC-16-359, 2016 WL
6802834, at *2 (D. Md. Nov. 17, 2016) (disallowing 1.91 hours spent by legal assistant to
proofread and critique fee petition and motion for summary judgment, as “the Commissioner
should not pay for a legal assistant to review and critique these documents, written by counsel,
before filing”).

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In light of the circumstances of this case, the Court thus finds that an award of fees in the
amount of $6,612.00 for 34.80 hours at the requested hourly rate of $190 is reasonable.
Plaintiff’s Motion for Attorneys’ Fee Under the Equal Access to Justice Act (ECF No. 26) thus is
GRANTED IN PART and DENIED IN PART. A separate order shall issue.

Date: December 13, 2016

/s/
Thomas M. DiGirolamo
United States Magistrate Judge

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