Miles v. Astrue

Filing 35

ORDER GRANTING 33 Defendant's Motion for Reconsideration. The Court's order of May 28, 2014, is hereby AMENDED to reflect that the plaintiff's counsel is awarded attorney's fees under the EAJA in the amount of $6,022.79. The expense award of $802.99 remains. Signed by US District Judge Terrence W. Boyle on 7/23/2014. (Fisher, M.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
No. 5:12-CV-74-BO

DURAND EDWARD MILES,
Plaintiff,
v.

CAROLYNW. COLVIN,
Acting Commissioner ofSocial Security,
Defendant.

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ORDER

This cause comes before the Court on defendant's motion for reconsideration pursuant to
Rule 59(e) ofthe Federal Rules of Civil Procedure. Plaintiffhas responded and the matter is ripe
for ruling. For the reasons discussed below, defendant's motion is granted.
DISCUSSION

By order entered March 28, 2014, this Court awarded plaintiffs counsel $9,034.19 in
attorney's fees and expenses in the amount of $802.99 pursuant to the Equal Access to Justice
Act (EAJA). 28 U.S.C. § 2412(d)(1)(A). Rule 59(e) permits the court to alter or amend its
judgment on motion of a party filed within twenty-eight days of the entry of judgment.
Fed.R.Civ.P. 59(e). In order to succeed on a motion pursuant to Rule 59(e), the movant must
demonstrate that the judgment under reconsideration should be altered or amended. The Fourth
Circuit has identified three circumstances that justify altering or amending a judgment: (1) to
incorporate an intervening change in the law, (2) to incorporate new evidence which was
unavailable when the court made its decision, and (3) to rectify a clear legal error or prevent
manifest injustice. Bogart v. Chappell, 396 F.3d 548, 555 (4th Cir. 2005).

Upon review of its order awarding attorney's fees, the Court finds that some hours
included by plaintiffs counsel were not compensable under EAJA or were unreasonable.

See Guthrie v. Schweiker, 718 F.2d 104, 108 (4th Cir. 1983) (on petition for EAJA fees
the court may consider only services rendered in connection with judicial not
administrative proceedings). For example, plaintiffs counsel has included a total of 2.3
hours during which at least some time was spent discussing plaintiffs bankruptcy
proceedings, and such time would not be compensable under EAJA. Further, the Court
agrees that the timesheets submitted do not necessarily reflect counsel's "good faith effort
to exclude from [her] fee request hours that are excessive, redundant, or otherwise
unnecessary ...."

Hensley v. Eckerhart, 461 U.S. 424, 434 (1983).

For example,

counsel has included in her fee request .2 hours spent reviewing the notice of appearance
filed by defendant's counsel and .3 hours of conference with her legal assistant regarding
the status of service of process, which appears to the Court to be either excessive or
unnecessary hours spent.
While the Court will not engage in micromanagement of counsel's time in order
to determine whether the fee request is reasonable, Quade ex rei. Quade v. Barnhart, 570
F. Supp.2d 1164, 1167-1168 (D. Ariz. 2008), it determines upon review that the total
amount of fees requested by plaintiffs counsel includes either non-compensable or
excessive hours. In light of this and the Court's determination that the amount of fees
requested here is not in line with other EAJA awards entered by this Court in similar
cases, defendant's motion to alter or amend is allowed.

The EAJ A fee award to

plaintiffs counsel is hereby REDUCED by one-third, or $3,011.40, to reflect the removal

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of non-compensable hours, time spent that the Court has deemed excessive, and to bring
the award more in line with EAJA awards in similar cases.
CONCLUSION
For these reasons, defendant's motion to reconsider [DE 33] is GRANTED. The
Court's order of May 28, 2014, is hereby AMENDED to reflect that plaintiffs counsel is
awarded attorney's fees under EAJA in the amount of$6,022.79. The expense award of
$802.99 remains.

SO ORDERED.
This the

,jJ_ day of July, 2014.

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