Banks v. Colvin

Filing 37

ORDER granting in part and denying in part 33 Motion for Attorney Fees. Signed by District Judge Terrence W. Boyle on 1/15/2016. (Romine, L.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
SOUTHERN DIVISION
No. 7:14-CV-222-BO
TONYA RENEE BANKS,
Plaintiff,
v.
CAROLYN COL VIN,
Acting Commissioner of Social Security,
Defendant.

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ORDER

This matter is before the Court on plaintiff's Motion for attorney's fees and costs
pursuant to 28 U.S.C. § 2412(d), the Equal Access to Justice Act (EAJA), to which the
government has responded. For the reasons discussed below, counsel's motion is granted but the
total fee awarded is reduced.
BACKGROUND
Ms. Banks sought appellate review of the Commissioner's decision before this Court on
October 16, 2014. Following a hearing before this Court on September 8, 2015, the matter was
remanded to the Commissioner for further proceedings consistent with the Court's September
23, 2015, order. Plaintiff now seeks an award of fees in the amount of $9,443.43 for 62.2 hours
of work spent on the appeal and $1,839.29 in expenses. Defendant does not dispute that plaintiff
was the prevailing party, that defendant's position in the underlying litigation was unjustified, or
that plaintiff is procedurally eligible for EAJA fees. Though defendant does not object to the
hourly rate sought by plaintiff, defendant does argue that the number of hours billed by plaintiff
and costs requested are excessive and warrant reduction.

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DISCUSSION
Under the EAJA, parties who prevail in litigation against the United States are entitled to
payment for reasonable attorney's fees unless the position of the United States throughout the
litigation was "substantially justified." 28 U.S.C. § 2412(d)(l)(A). In order to establish eligibility
for an award under the EAJA, the claimant must show that (i) she is the prevailing party; (ii) the
government's position was not substantially justified; (iii) no special circumstances make an
award unjust; and (iv) the fee application was submitted to the court within thirty days of final
judgment and was supported by an itemized statement. Crawford v. Sullivan, 935 F.2d 655, 656
(4th Cir. 1991 ). As defendant does not dispute that plaintiff meets these threshold conditions for
an award of fees and costs under the EAJA, the Court finds that plaintiff has met them.
"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."' Hyatt v. Barnhart, 315 F.3d 239, 253 (4th Cir. 2001)
(citation omitted). As the prevailing party here, "plaintiff'bears the burden of establishing that
the number of hours for which she seeks reimbursement is reasonable and does not include any
claim for hours which are excessive, redundant, or otherwise unnecessary."' Dixon v. Astrue, No.
5:06-CV-77-JG, 2008 WL 360989, *3 (E.D.N.C. Feb. 8, 2008) (citation omitted). In determining
the amount of a fee, a court may consider the extent of plaintiffs success, the novelty and
complexity of the issues presented, the experience and skill of the attorney, and the typical range
of compensated hours in a particular field. Id. at *3-*4. A court has great discretion to determine
the fee award so long as the fee is reasonable. Hyatt, 315 F.3d at 254.
Here, plaintiff has not met her burden of showing that 54.3 hours of attorney time are
reasonable in this litigation. This is significantly greater than the typical request in a social

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security case. See, e.g., Rogers v. Astrue, 5:12-CV-03-RLF-DCK, 2015 WL 9239000, *3 (Dec.
17, 2015) (collecting cases). Time sheets accompanying plaintiffs motion include numerous
entries for time spent on ministerial tasks, such as canceling travel arrangements. The time sheets
also include entries for reviewing documents that are simply electronic docket entries or one
page orders. The Court finds that billing for these is likewise inappropriate. It is well established
that purely clerical tasks should not be compensated for, see, e.g., Chapman v. Astrue, No.
2:08CV00040, 2009 WL 3764009 , * 1 (W.D. Va. Nov. 9, 2009), and that counsel should refrain
from billing for "excessive, redundant, or otherwise unnecessary" hours, Hensley v. Eckerhart,
461U.S.424, 434 (1983). Plaintiff's counsel additionally claims attorney hours for clerical tasks
such as updating the client and compiling e-cases. See, e.g. Rogers, 2015 WL 3764009, *3.
Attorney hours should not be billed for tasks such as these, which could and should be completed
by a non-attorney. It is also well established that it awarding the full attorney rate for activities
that could more effectively be performed by non-lawyers is improper. See, e.g., Spell v.
McDaniel, 824 F.2d 1380, 1401-02 (4th Cir. 1987). Examining the time sheets submitted by

plaintiff in light of these principles, it is clear that certain entries should be reduced in time or
eliminated.
While the Court will not engage in micromanagement of counsel's time in order to
determine whether the fee request is reasonable, Quade ex rel. Quade v. Barnhart, 570
F.Supp.2d 1164, 1167-68 (D.Ariz. 2008), it determines upon review that the total amount of fees
requested by plaintiff's counsel includes non-compensable and excessive hours, as well as hours
that should have been billed at a non-attorney rate. Rather than reducing or eliminating specific
time entries, the Court will exercise its discretion and reduce the EAJA fee award to plaintiffs
counsel by one third, resulting in a fee award of $6,295.62.

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The Court also notes that, unlike the August plane ticket, plaintiff did not submit a receipt
for the September plane ticket. Instead, plaintiff merely submitted an itinerary with an estimated
cost for the September plane ticket. Accordingly, the Court determines that the $894.93 cost for
the September plane ticket is not reimbursable, resulting in costs of $944.36.
CONCLUSION
For the foregoing reasons, plaintiffs motion for EAJA fees is GRANTED in PART and
DENIED in PART. Plaintiff is awarded $6,295.62 in fees and $944.36 in costs.

SO ORDERED, this jCday of January, 2016.

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RRENCE

W. BOYLE
UNITED STATES DISTRICT JUDGE

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