Stark v. Commissioner of Social Security
Filing
25
ORDER granting 23 Motion for Attorney Fees. Signed by Magistrate Judge David A. Sanders on 6/17/2015. (rrz)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
OXFORD DIVISION
ANDREW STARK
PLAINTIFF
V.
CIVIL ACTION NO. 3:14CV150-DAS
COMMISSIONER OF
SOCIAL SECURITY
DEFENDANT
ORDER GRANTING EAJA FEES
This matter is before the court on plaintiff’s motion (#23) for payment of attorney’s fees
and expenses pursuant to the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412. In these
proceedings, plaintiff sought judicial review of the final decision of the Commissioner of Social
Security, which denied his claim for benefits. By judgment, this court remanded plaintiff’s case
to the Commissioner for further proceedings. On the heels of that decision, plaintiff filed his
petition for EAJA fees and expenses on grounds that he was the prevailing party and the
Commissioner’s position was not “substantially justified.” His petition seeks $5,355.00 in
attorney’s fees, $54.05 in travel expenses and $367.50 as reimbursement for the costs of printing
the transcript and serving process. In sum, plaintiff requests $5,756.55 in reimbursement. The
Commissioner disputes this amount.
LEGAL STANDARD: EAJA
“The objective of the EAJA is clear: to eliminate financial disincentives for those who
would defend against unjustified governmental action and thereby to deter the unreasonable
exercise of Government authority.” United States v. Claro, 579 F.3d 452, 466 (5th Cir. 2009).
Of course, the greatest financial disincentive to prospective litigants is the cost of hiring counsel.
Compounding this problem, Social Security claimants are primarily indigent, and the law
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governing their claims is highly technical and requires significant expertise.1 The EAJA
alleviates these deterrents with a fee-shifting mechanism, which helps attorneys represent these
litigants by compensating them when they are successful.2
To be entitled to an EAJA award: 1) the claimant must be a “prevailing party;” 2) the
claimant must “incur” attorney’s fees; 3) the government’s position must not have been
“substantially justified;” and 4) “special circumstances” cannot render an award of fees unjust.
28 U.S.C. § 2412(d)(1)(A). If these requisites are satisfied, “a court shall award to a prevailing
party…fees and other expenses…incurred by that party in any civil action…, including
proceedings for judicial review of agency action…” 28 U.S.C. § 2412(d)(1)(A). The EAJA also
permits courts to compensate prevailing claimants for certain costs. Id. at § 2412(a)(1)
(incorporating those costs enumerated in 28 U.S.C. § 1920).
Because the EAJA amounts to a partial waiver of sovereign immunity by the United
States, courts strictly construe the statute in favor of the government. Murkeldove v. Astrue, 635
F.3d 784, 792 (5th Cir. 2011). Nevertheless, courts in the Fifth Circuit must take policy into
account when interpreting the EAJA. Id.
DISCUSSION
Whether plaintiff is entitled to an EAJA award is not in dispute; the Commissioner only
disputes the amount to which plaintiff is entitled. The Commissioner contests the following
portions of plaintiff’s EAJA petition: (1) the amount billed for his counsel’s travel time; (2) the
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Sta-Home Home Health Agency, Inc. v. Shalala, 34 F.3d 305, 309 (5th Cir. 1994).
See United States v. Claro, 579 F.3d 452, 465 (5th Cir. 2009) (extending EAJA awards to legal services groups to
ensure they have a strong incentive to represent indigent claimants); Meyler v. Comm'r of Soc. Sec., 2008 WL
2704831, at *4 (D.N.J. July 7, 2008); Hagman v. Astrue, 546 F. Supp. 2d 1294, 1299 (M.D. Fla. 2007) (stating that a
primary reason for enacting the EAJA was to incentivize attorneys to represent indigent claimants in Social Security
cases).
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amount billed in relation to his motion for extension of time; and (3) the reimbursement sought
for copying the transcript and serving process. Each will be addressed separately below.
A. Counsel’s Travel Time
Plaintiff seeks compensation for the three hours counsel spent travelling to, and
participating in, oral argument. Using the full hourly rate of $175.00, plaintiff calculated this
portion of the award to be $525.00 The Commissioner objects to compensating counsel’s travel
time at the full hourly rate and would have this court apply a reduced rate: 50% of the full hourly
rate. Since plaintiff commingled the time counsel spent travelling with the time he spent in oral
argument, the Commissioner requests that the reduced rate be applied to the entire three-hour
block. In other words, the Commissioner seeks to reduce plaintiff’s award by $262.50.
In support of her position, the Commissioner has cited precedent from this circuit where
courts have compensated travel time at a lower hourly rate, 3 but she has failed to cite any
authority requiring this court to follow suit. As discussed above, the EAJA was intended to
attract private counsel to represent meritorious claimants who would not be able to afford
representation, otherwise. This case demonstrates its utility in that respect; plaintiff’s counsel
successfully prosecuted this case in a manner that was both diligent and efficient. Yet, unlike
experienced attorneys in other complex areas of the law, plaintiff’s counsel is limited by statute
to a relatively low fee. See 28 U.S.C. § 2412(d)(2)(A). It is also common practice for attorneys
in other fields to bill a full hourly rate for travel time. The court declines to further reduce the
incentive for social security work by reducing compensation that is already below the market rate
for similar services. Therefore, the court finds plaintiff’s request of $525.00 is reasonable and
should be granted.
3
See Jimenez v. Paw-Paw’s Camper City, 2002 WL 257691, *23 (E.D. La. Feb. 22, 2002) (stating that courts in this
circuit typically compensate travel time at 50% of the attorney’s rate in the absence of documentation that any legal
work was accomplished during travel time).
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B. Motion for Extension of Time
Plaintiff also seeks $52.50 for 0.3 hours counsel spent drafting one motion for an
extension of time and for reviewing the court’s order granting such. The Commissioner objects
to this request and argues that it would reward plaintiff’s counsel for not submitting timely
pleadings. However, this argument is unavailing and undermines the policy aims of the EAJA.
Motions for extensions of time are regularly requested and granted in Social Security
cases. Here, plaintiff’s counsel requested only one extension, to which the government voiced
no objection. In that motion, plaintiff’s counsel stated that he could not meet the deadline
because several other social security hearings kept him out of the office. Because plaintiff’s
counsel did not excessively or frivolously seek extensions, this court finds that the time spent in
relation to the motion was reasonable and should be compensated. 4
C. Copying and Service of Process
The last issue concerns plaintiff’s § 2412(a)(1) request of $367.50 for the costs associated
with copying the transcript and serving process. The Commissioner objects on two grounds: (1)
copying the electronic transcript was not a necessary task, and therefore, non-compensable under
the EAJA; and (2) because plaintiff proceeded in forma pauperis, he incurred no cost for service
of process. Consequently, the Commissioner would have this court reduce plaintiff’s award by
$367.50.
At the outset, the court finds any costs attributed to the Marshals serving process are not
compensable under the EAJA. “[A] judgment for costs…shall…be limited to reimbursing in
whole or in part the prevailing party for the costs incurred by such party in the litigation.”
4
See Quade ex rel. Quade v. Barnhart, 570 F. Supp. 2d 1164, 1167 (D. Ariz. 2008) (“Absent evidence that the
extensions were excessive or frivolous, this Court finds that the time spent on the extensions was reasonable and
should be compensated”); Samuel v. Barnhart, 316 F. Supp. 2d 768, 779 (E.D. Wis. 2004) (“Extensions of time are
regularly requested and granted in social security cases in this district…”).
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§ 2412(a)(1) (emphasis added). Plaintiff proceeded in forma pauperis in this case (#4), and
therefore, did not incur any costs for service of process.
The Commissioner’s argument regarding the costs of copying the electronic transcript, on
the other hand, falls flat. Contrary to the Commissioner’s assertion that printouts are
unnecessary, this court has yet to conduct a Social Security hearing wherein the government
attorneys did not rely on full computer printouts of the electronic transcript during oral argument.
And notwithstanding its necessity, “the costs of general copying” are among those compensable
under § 2412(a)(1). Mennor v. Fort Hood Nat’l Bank, 829 F.2d 553, 556 & n. 17 (5th Cir. 1987).
Nevertheless, the court is also cognizant of the cost-savings that electronic filing was intended to
achieve.5 Therefore, the court finds that plaintiff is entitled to reimbursement for copying the
electronic transcript, albeit at a rate more reasonable than that listed in his petition.
Plaintiff’s counsel explained the petition’s request of $367.50 as having two elements.
The first, and most obvious, is the cost of materials, i.e., the paper and toner consumed in
printing over five-hundred pages. The second, and least obvious, is the cost of manpower.
Plaintiff’s counsel states that he cannot print Social Security transcripts during normal business
hours because they are large documents, and each transcript takes an inordinate amount of time
to complete. If they were printed during business hours, his printers would be relegated solely to
that task. As a consequence, Social Security transcripts are only printed after the close of
business, which requires him to keep staff afterhours to man the machines.
After balancing the policy aims of the EAJA with the government’s interest using
technology to reduce its administration costs, this court finds plaintiff can only recover the costs
of the materials consumed under § 2412(a)(1). If allowed to recover the full amount requested,
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See, e.g., 234 FRD 574, 583 (April 12, 2006) (Committee on Court Administration and Case Management
concluded that mandatory electronic case filing would achieve significant cost savings for the federal courts).
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the government would be forced to pay an unconscionable rate of $0.63 per page.6 However,
had plaintiff outsourced printing, the cost per page would have been dramatically lower: $0.08.7
Therefore, the court finds that his request of $367.50 shall be reduced to reflect the prevailing
market rate: $46.48.
CONCLUSION
Accordingly, plaintiff’s motion for EAJA fees and expenses is hereby granted. However,
plaintiff’s request of $367.50 for copying the electronic transcript will be reduced by $321.02.
Therefore, plaintiff is entitled to $5,355.00 in attorney’s fees, $54.05 in travel expenses and
$46.48 for the cost of copying the electronic transcript. This award is to be paid to plaintiff for
the benefit of his attorney, Joe Morgan Wilson.
SO ORDERED this, the 17th of June, 2015.
/s/ David A. Sanders
UNITED STATES MAGISTRATE JUDGE
6
$367.50 (petition’s request) / 581 (transcript page length)= $0.63
For 581 pages, Office Depot quoted a price of $46.48. By outsourcing this print job to a third party, plaintiff could
have saved $0.55 per page. See http://www.officedepot.com/configurator/pod/#/product/copiesAndFlyers (accessed
on June 15, 2015).
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