Anderson v. Commissioner of Social Security

Filing 30

ORDER granting in part and denying in part 24 Motion for Attorney Fees. Signed by Magistrate Judge Jane M. Virden on 11/6/15. (ncb)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
OXFORD DIVISION

ARETHA LYNN ANDERSON
V.

PLAINTIFF
NO. 3:14CV00275-JMV

COMMISSIONER OF SOCIAL SECURITY

DEFENDANT

ORDER ON PETITION FOR ATTORNEY’S FEES
Before the court is Plaintiff’s petition [24] for attorney’s fees pursuant to the Equal
Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d). In these proceedings Plaintiff sought
judicial review of the Social Security Commissioner’s final decision denying a claim for
benefits. By Judgment [20] dated July 29, 2015, this Court remanded this case to the
Commissioner for further proceedings. Plaintiff now seeks attorney’s fees and costs in the
amount of $10,576.11, representing 54.4 hours of Plaintiff’s attorney’s time at a rate of $190.12
per hour and costs in the amount of $233.58, on the grounds that she was the prevailing party
and the Commissioner’s position was not “substantially justified.”
The Commissioner objects to the fee request on the grounds that 1) the number of
claimed attorney hours are unreasonable because they exceed the number expended in the
“typical” social security case; 2) Plaintiff has provided no justification for enhancement of the
statutory EAJA rate; 3) next-day mailing expenses were unnecessary in view of the availability
of electronic filing; and 4) the requested printing costs are not recoverable in in forma pauperis
cases.
First, the Court is not persuaded by the Commissioner’s suggestion that Plaintiff’s
counsel’s hours should be reduced because they exceed the amount spent in the “typical” case.

Instead, the Court acknowledges that the administrative transcript in this case is slightly more
voluminous than what the Court sees in the “typical” case. Nevertheless, despite the volume of
the record encountered by Plaintiff’s counsel here, the case was not particularly complex and
presented no novel issues. Accordingly, the Court finds the 12 hours spent on legal research
should be reduced to 6 hours, and the 20 hours spent on preparation of Plaintiff’s brief (9
substantive pages) and reply (7 substantive pages) should be reduced to 12 hours. Ultimately,
the undersigned finds recovery of compensation for 40.4 attorney hours is reasonable in this
case.
Second, in Fowler v. Colvin, No. 4:14cv39-JMV, 2014 WL 7187086, at *2 (N.D. Miss.
Dec. 17, 2014), this Court pointed out that “in view of the obvious fact that the cost-of-living
has increased since amendment of the [EAJA] statute in March 1996, an increase in the statutory
maximum hourly rate for inflation is appropriate . . . .” Accordingly, the Court in its discretion
finds the statutory cap in this case should be increased to $188.24.1 Plaintiff has not provided
any legal authority in support of a higher rate.
Third, because Plaintiff’s counsel has provided no explanation for overnight mailing of
documents to her client; failed to adequately justify the necessity of overnight mailing to the

1

According to the regional index published by the Bureau of Labor Statistics on its website, the CPI for the
South urban region was 152.4 in March 1996 (when the $125 statutory cap was instituted). The average regional
CPI figure for the first half of 2015, when counsel performed most of her work on this case was 229.501. This is a
significant increase in the cost of living since March 1996 and, therefore, justifies an increase in the hourly rate for
attorney’s fees. Ultimately, this increase in the EAJA’s statutory rate of $125 yields an adjusted hourly rate of
$188.24 in this case (229.501 x 125/152.4).

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clerk in view of the availability of electronic filing; and has offered no argument or authority in
support of an award of photocopying costs,2 these amounts will not be allowed.3
THEREFORE, IT IS ORDERED:
That the Commissioner shall promptly pay to Plaintiff $7,661.00 in attorney’s fees and
expenses for the benefit of counsel for Plaintiff.
This, 6th day of November, 2015.

/s/ Jane M. Virden
U. S. MAGISTRATE JUDGE

2

See Sandoval v. Apfel, 86 F. Supp. 2d 601, 611-614 (N.D. Tex. 2000) (finding photocopying costs are not
recoverable against the United States in in forma pauperis cases pursuant to 28 U.S.C. 1915(f)(1)).
3

Counsel will be allowed to recover $56.10 in mileage expenses.

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