McCaslin v. Astrue

Filing 32

MEMORANDUM AND ORDER re: 28 MOTION for Attorney Fees filed by Plaintiff Rodger T. McCaslin motion is GRANTED in PART. IT IS FURTHER ORDERED that plaintiff shall recover from the Social Security Administration $4,203.73, subject to offset to satisfy pre-existing debt plaintiff owesto the Untied States. Signed by District Judge Carol E. Jackson on 4/26/13. (MRS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
RODGER T. MCCASLIN,
Plaintiff,
vs.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.

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Case No. 1:12-CV-20 (CEJ)

MEMORANDUM AND ORDER
This matter is before the Court on plaintiff’s application for an award of
attorney’s fees and expenses pursuant to the Equal Access to Justice Act (EAJA), 28
U.S.C. § 2412(d)(1)(A). Plaintiff seeks an award of $5,896.00, representing 29 hours
of attorney services at up to $186.36 per hour, and 6 hours of paralegal services at
$50.00 per hour. Defendant objects to the amount of fees requested.
Attorney’s fees awarded under the EAJA should be reasonable. 28 U.S.C. § 2412
(d)(2)(A). The Court must independently evaluate the reasonableness of counsel’s bill
and exclude hours that were not reasonably expended. Johnson v. Barnhart, No. 030054-CV-W-REL-SSA, 2004 WL 213183, at *1 (W.D. Mo. Jan. 13, 2004) (citing
Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)). “[T]he fee applicant bears the
burden of establishing entitlement to an award and documenting the appropriate hours
expended and hourly rates.” Hensley, 461 U.S. at 427.
Defendant raises three objections to the billable hours plaintiff’s counsel
submitted for reimbursement. First, counsel listed one hour spent working on the case
at the administrative level. Plaintiff has since conceded that work performed at the

administrative level is not compensable under the EAJA, so plaintiff’s application will
be reduced by one hour (billed at $182.15).
Second, plaintiff’s counsel billed 2.5 hours responding to the Court’s order to
show cause why the case should not be dismissed for failure to prosecute, and 0.5
hours reviewing the Court’s decision regarding that order. As defendant points out,
this work was created by the failure of plaintiff’s counsel to timely file his brief. Plaintiff
responds that his counsel is not to blame, as he had not been admitted pro hac vice
before the case management order was issued and had no notice of the briefing
schedule. The docket clearly shows that the case management order was delivered
to plaintiff’s counsel at his office address. Furthermore, plaintiff’s counsel billed 0.5
hours for reviewing the case management order on February 10, 2012, the date the
order was issued.. The Court assumes from this billing entry that plaintiff’s counsel
did review the briefing deadlines set forth in the case management order, but failed
to timely file his brief. He will not be reimbursed for work created by his mistake, and
three hours of billing will be subtracted from his request (a reduction of $556.62).
Finally, plaintiff’s counsel billed 0.5 hours for routine tasks that reasonably
require only a fraction of that time. Every telephone call to chambers, his client, and
the AUSA was billed at 0.5 hours. Plaintiff’s counsel billed 0.5 hours for sending short
emails to the AUSAs.

He also billed 0.5 hours for reviewing the standard case

management order and the entry of appearance by the AUSA.

Perhaps most

outrageous is counsel’s request for 0.5 hours to review the Court’s one-line docket text
order granting his motion to appear pro hac vice. Defendant objects to the hours billed
for these routine tasks, and plaintiff responds that his counsel billed a mere five hours
for writing his brief. This is a non sequitur. Billing fewer hours for one task does not

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justify overbilling for another. If anything, the fact that plaintiff’s counsel is able to
research, write, and file a legal brief within 5.5 hours belies the claim that it took one
half hour to read a one-line docket text order.
The Court will reduce counsel’s billing to the amount of time that each task
reasonably requires. Telephone conferences will be reduced to 0.25 hours, resulting
in the reduction of $436.25.1

Reviewing single-

or double-page orders will be

reduced to 0.25 hours, resulting in a reduction of $137.68.2

Emails and

correspondence also will be allotted 0.25 hours, resulting in a reduction of $232.25.3
Reviewing the docket text order granting admission pro hac vice and the assistant U.S.
Attorney’s entry of appearance will be reduced to 0.1 hours, further reducing the fee
by $147.32.4
Reducing plaintiff’s requested fee by the amounts noted above will result in a
total award of $4,203.73.5

The Court concludes that this award is reasonable

considering the work performed by plaintiff’s counsel in this case.
Accordingly,
IT IS HEREBY ORDERED that plaintiff’s application for attorney’s fees and
expenses [Doc. #28] is GRANTED in part.

1

Phone calls were billed on 9/28/11, 12/14/11, 12/29/11, 1/24/12, 3/16/12, 8/23/12,
8/24/12, 10/29/12, 11/8/12, 11/12/12, 12/11/12, 1/15/13, 1/22/13, 1/24/13, 2/13/13, and
4/2/13.
2

Review of Court orders were billed on 1/6/12, 2/10/12, and 2/15/13.

3

Counsel billed for sending emails and letters on 8/21/12, 1/14/13, 2/6/13, 2/13/13,
and 2/14/13.
4

These activities were billed on 3/2/12 and 3/28/12.

5

Plaintiff’s counsel requests additional fees for drafting a reply to defendant’s objection
to EAJA fees. Because the Court agrees with the defendant that plaintiff’s fee request was
unreasonable, the Court will not award additional fees for work performed on plaintiff’s reply
brief.

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IT IS FURTHER ORDERED that plaintiff shall recover from the Social Security
Administration $4,203.73, subject to offset to satisfy pre-existing debt plaintiff owes
to the Untied States.

___________________________
CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE
Dated this 26th day of April, 2013.

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