Sacco v. Astrue

Filing 17

MEMORANDUM OF DECISION AND ORDER granting in part and denying in part 13 Motion for Attorney Fees. Signed by District Judge Martin Reidinger on 12/22/10. (emw)

S a c c o v. Astrue

D o c . 17

IN THE DISTRICT COURT OF THE UNITED STATES F O R THE WESTERN DISTRICT OF NORTH CAROLINA AS H E V IL L E DIVISION C IV IL CASE NO. 1:09cv320

P E TE R J. SACCO,

) ) P l a i n t if f , ) ) vs . ) ) M IC H AE L J. ASTRUE, ) C o m m is s io n e r of Social Security, ) ) D e fen d a n t. ) ) _______________________________ )

M E M O R AN D U M OF D E C IS IO N AND ORDER

TH IS MATTER is before the Court on the Plaintiff's Motion for A tto rn e y's Fees Under the Equal Access to Justice Act and the Social S e c u rity Act. [Doc. 13]. I. P R O C E D U R AL HISTORY T h e Plaintiff Peter J. Sacco initiated this action on August 14, 2009, s e e k in g review of the denial of his claim for benefits by the Defendant M ic h a e l J. Astrue, Commissioner of Social Security ("Commissioner") u n d e r the Social Security Act. [Doc. 1]. The Commissioner filed an A n s we r to the Plaintiff's Complaint on October 19, 2009. [Doc. 4]. Thereafter, the Plaintiff filed a motion for summary judgment on the basis of

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th e administrative record. [Doc. 8]. The Government in response entered a n unopposed motion to remand. [Doc. 10]. On April 2, 2010, the Court e n te re d an Order remanding the case to the Commissioner pursuant to s e n te n c e four of 42 U.S.C. § 405(g). [Doc. 11]. The Plaintiff now moves for an award of attorney's fees pursuant to th e Equal Access to Justice Act, 28 U.S.C. § 2412(d) ("EAJA") in the a m o u n t of $6084.62. The Plaintiff further requests that the Court allow him 3 0 days after being served with notice of an award of past-due benefits to file for fees pursuant to the Social Security Act, 42 U.S.C. § 406(b). [Docs. 1 3 and 14]. In response, the Government states that it does not object to th e total amount of $5097.40 for attorney's fees to be made payable to the P la in tiff. [Doc. 15]. II. A N A L Y S IS U n d e r the EAJA, the Court must award attorney's fees to a prevailing p a r ty in a civil action brought against the United States unless the Court fin d s that the Government's position was "substantially justified" or that "s p e c ia l circumstances" would make such an award unjust. 28 U.S.C. § 2 4 1 2 (d )(1 )(A ). Because the Court ordered this case be remanded to the C o m m is s io n e r pursuant to sentence four of 42 U.S.C. § 405(g), the Plaintiff

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is properly considered a "prevailing party" in this action. See Shalala v. S c h a e fe r, 509 U.S. 292, 302, 113 S.Ct. 2625, 2632, 125 L.Ed.2d 239 (1 9 9 3 ). In the present case, the Commissioner does not contest the Plaintiff's re q u e s t for fees; only the amount thereof. In light of the Court's prior re m a n d of this matter, and in the absence of any contention by the C o m m is s io n e r that its position was substantially justified or that special c irc u m s ta n c e s exist that would render an award of attorney's fees unjust, th e Court concludes that the Plaintiff is entitled to an award of attorney's fe e s under the EAJA. Having determined that the Plaintiff is entitled to an award, the Court n o w turns to the issue of the amount of fees to be awarded. The parties do n o t agree on the sum that the Plaintiff should be awarded. The Court notes th e Plaintiff's concession of certain points made by Defendant on that q u e s tio n . [Doc. 16]. In support of his request, the Plaintiff submits documents showing the C o n s u m e r Price Index for March 1996 and March 2009, respectively, as we ll as affidavits of counsel and billing records detailing the hours claimed b y counsel and paralegals in preparing this case. [Docs. 14-1 to 14-6].

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U n d e r the EAJA, an award of attorney's fees must be "reasonable," b o th with respect to the hourly rate charged and the number of hours c la im e d . See Hyatt v. Barnhart, 315 F.3d 239, 248 (4th Cir. 2002) (quoting 2 8 U.S.C. § 2412(d)(2)(A)(ii)). The Court has broad discretion to determine wh a t constitutes a reasonable fee award. See 28 U.S.C. § 2412(b); May v. S u lliva n , 936 F.2d 176, 177 (4th Cir. 1991) (per curiam). With regard to an attorney's hourly rate, the EAJA provides, in p e rtin e n t part, as follows: T h e amount of fees awarded . . . shall be based upon p re va ilin g market rates for the kind and quality of the s e rv ic e s furnished, except that . . . attorney fees shall n o t be awarded in excess of $125 per hour unless the c o u rt determines that an increase in the cost of living o r a special factor, such as the limited availability of q u a lifie d attorneys for the proceedings involved, ju s tifie s a higher fee. 2 8 U.S.C. § 2412(d)(2)(A)(ii). The decision to grant an upward adjustment o f this statutory cap is a matter within the Court's sound discretion. Payne v. Sullivan, 977 F.2d 900, 901 (4th Cir. 1992). The Consumer Price Index data published by the Bureau of Labor S ta tis tic s reflects that the cost of living increased from 155.7 in March 1 9 9 6 , the date that the statutory rate of $125 per hour was established, to 2 1 7 .6 3 in March 2010, the date of the Court's Judgment remanding this
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c a s e , an increase of 39.78%. The Court finds that this increase in the cost o f living justifies a corresponding increase in the hourly rate in this case. The Court further finds that this higher hourly rate is consistent with the p re va ilin g market rates for services charged by lawyers of similar talents a n d experience in this District. Accordingly, the Court concludes that the P la in tiff is entitled to an award of attorney's fees based upon an hourly rate o f $174.72. T h e Plaintiff also claims fees for 2.75 hours of paralegal services with o u t noting an hourly rate therefor. It is Plaintiff's obligation to prove that th e claimed hourly rate for this work is in keeping with "prevailing market ra te s " for paralegals in this District, but has provided no proof. See Richlin S e c . Serv. Co. v. Chertoff, 553 U.S. 571, 128 S.Ct. 2007, 2012, 170 L .E d .2 d 960 (2008). In this District, paralegal services have been c o m p e n s a te d for a significant period at a rate of $65.00 per hour. Review s u a sponte of the length of time this has been the customary rate indicates th a t an increase is in order. The Court concludes that a rate of $70.00 per h o u r is reasonable. F u rth e rm o re , upon careful review of counsel's time sheets and a ffid a vits , the Court reduces by 5.4 hours Charles Martin's time spent

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re writin g the brief of Ms. Faust which is unnecessarily duplicative of her tim e . The Court disagrees with Defendant's speculation about the reason fo r Plaintiff's request for extension of time and does not reduce Mr. B o wlin g 's time claimed in that regard; that single request reasonably s o u g h t to change an automatically-calculated deadline that unfortunately h a p p e n e d to fall on Christmas Eve (a Court holiday) [Doc. 6], rather than to a c c o m m o d a te inefficiency. The Court finds that the number of hours c la im e d to have been worked, after the 10 hour reduction noted in P la in tiff's filings, is reasonable for the work performed and for a case of this n a tu r e . We now turn to the question of which charges are payable at the h o u rly rate for attorneys. In this matter, only one attorney has appeared as c o u n s e l of record for Plaintiff, namely, Russell Bowling. Mr. Bowling is a d m itte d to and is in good standing with this Court. Mr. Bowling has in c lu d e d in his motion a claim for services of two other attorneys, Charles L . Martin and Audrey Faust. Neither Mr. Martin nor Ms. Faust have a p p e a re d as counsel of record in this case. More importantly, they are not a d m itte d in this District or licensed to practice law in this state, and have n o t sought or been allowed pro hac vice admission in this matter. The

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c a s e having been filed in 2009, ample time for attending to these important m a tte rs has passed. It is the responsibility of counsel to know and follow th e local rules. Review of Mr. Martin's and Ms. Faust's affidavits [Doc. 14-2 & 3] re ve a ls that their participation in this case was the same in form and s u b s ta n c e as his participation was, up to the same procedural stage, in M c D o n a ld v. Astrue, 2:09cv027, another of attorney Bowling's cases before th is Court. Therefore, the Court will treat Mr. Martin's and Ms. Faust's c la im e d hours as paralegal hours, based on the same rationale expressed in McDonald.1 B a s e d upon a reasonable hourly rate of $174.72 per hour for 2.65 a tto rn e y hours expended and the reasonable hourly rate of $70.00 per hour fo r 28.5 paralegal hours expended, the Court concludes that a total fee a wa rd of $2458.01 is justified. F in a lly, the parties request that the fee award be paid directly to P la in tiff's attorney. In support of this request, the Plaintiff submits an e xe c u te d assignment purporting to assign any and all EAJA fees to which

That rationale was also followed with the same result as to characterization of the hours claimed by Mr. Martin, in an order on the 406(b) fee claim in another of attorney Bowling's cases, Hayes v. Astrue. 2:08-cv-017 7

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h e is entitled to his attorneys. [Doc. 13]. The Court notes that the parties' re q u e s t was made in June 2010, and reflects payment practices then c o m m o n in the District. As is also explained in the McDonald EAJA order referenced above, th e Court cannot order payment to Mr. Bowling due to the ruling of the U.S. S u p re m e Court in Astrue v. Ratliff, 560 S.Ct.--, 2010 WL 2346547 (June 1 4 , 2010). The Court clarified that the "prevailing party" entitled to benefits u n d e r the EAJA is the claimant, not his attorney. Ratliff at *4-7. While the re s u lt that Plaintiff seeks here was granted in the McDonald case, the p a rtie s entered into an agreement in that case which satisfied the concerns ra is e d by the Supreme Court. No such agreement is present here. Based on the record before it, the Court must deny the request to a wa rd EAJA fees directly to Plaintiff's counsel, without prejudice to the p a rtie s ' opportunity to make supplemental motion(s) that harmonize their re q u e s t to honor Plaintiff's assignment with the ruling in Ratliff. ORDER A c c o rd in g ly, IT IS, THEREFORE, ORDERED that the Plaintiff's M o tio n for Attorney's Fees Under the Equal Access to Justice Act and the

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S o c ia l Security Act [Doc. 13] is hereby GRANTED in part and DENIED in p a rt, and: (1 ) T h e Plaintiff is hereby awarded $2458.01in attorney's fees and e xp e n s e s pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2 4 1 2 (d ). (2) T h e Plaintiff is further awarded $350.00 in costs, to be certified by the O ffic e of the United States Attorney to the Department of Treasury for p a ym e n t from the Judgment Fund. (3) D e fe n d a n t shall inform Plaintiff's counsel whether Plaintiff does owe a d e b t to the government by which this fee award may be offset no la te r than 45 days from the entry of this Order. A n d Plaintiff's Motion is DENIED IN PART as follows: (1 ) P a ym e n t of the sums approved must be made directly to Plaintiff and n o t to his counsel, without prejudice to the parties' right, within 20 d a ys of the entry of this Order, to submit supplemental motions on th e issue of honoring valid assignments after Ratliff for the Court's c o n s id e r a tio n .

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IT IS FURTHER ORDERED that Plaintiff's motion for leave to file an a ffid a vit in response to any opposition to this motion by Defendant is D IS M IS S E D as moot, since Defendant does not oppose his motion. IT IS FURTHER ORDERED that in the event that past-due benefits a re awarded on remand, the Plaintiff shall have thirty (30) days after being s e rve d with notice of the past-due benefits award to file for an award of fe e s pursuant to the Social Security Act, 42 U.S.C. § 406(b). IT IS FURTHER ORDERED that no additional petition pursuant to 28 U .S .C . § 2412(d) shall be filed. IT IS SO ORDERED.
Signed: December 22, 2010

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