Mooney v. Berryhill

Filing 22

MEMORANDUM OF DECISION AND ORDER granting in part Pltf's 17 Motion for Attorney Fees pursuant to EAJA to the extent that the Pltf is hereby awarded attorney's fees in the amount of $8,204.79, which sum is in full satisfaction of any and all claims by the Pltf. (See Order for further details). Signed by District Judge Martin Reidinger on 1/29/2020. (ejb)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO. 1:18-cv-00097-MR
KIMBERLY KAY MOONEY,

)
)
Plaintiff,
)
)
vs.
)
)
ANDREW SAUL, Commissioner
)
of Social Security,
)
)
Defendant.
)
_______________________________ )

MEMORANDUM OF
DECISION AND ORDER

THIS MATTER is before the Court on the Plaintiff's Motion for Fees
Pursuant to the Equal Access to Justice Act [Doc. 17].
I.

PROCEDURAL HISTORY
The Plaintiff initiated this action on April 15, 2018, seeking review of

the denial of her claim for benefits by the Commissioner under the Social
Security Act (the “Act”). [Doc. 1]. The Plaintiff's Complaint was filed by
George C. Piemonte, an attorney who is licensed to practice in North
Carolina and admitted to practice before this Court.
The Commissioner filed an Answer to the Plaintiff's Complaint on June
18, 2018. [Doc. 7]. Thereafter, the parties filed their respective Motions for
Summary Judgment and memoranda in support thereof. [Docs. 10, 11, 12,
13, 14].

On August 12, 2019, the Court entered an Order remanding this case
to the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g). [Doc.
15]. On November 8, 2019, the Plaintiff filed a Motion for Fees pursuant to
the Equal Access to Justice Act, 28 U.S.C. § 2412(d). [Doc. 17]. Specifically,
the Plaintiff seeks an award in the amount of $9,785.48, representing 48.3
hours of total work performed at the rates of $202.66 and $202.34 per hour
by her attorneys Michel Phillips1 and George Piemonte. [See Doc. 18-2]. On
November 21, 2019, the Commissioner filed a Memorandum in Opposition
to the Plaintiff's request for attorney's fees. [Doc. 20]. On December 2, 2019,
the Plaintiff filed a Reply to the Commissioner’s Memorandum in Opposition.
[Doc. 21].
Having been fully briefed, this matter is ripe for disposition.
II.

DISCUSSION
Under the Equal Access to Justice Act (“EAJA”), the Court must award

attorney's fees to a prevailing party in a civil action brought against the United
States unless the Court finds that the Government's position was
“substantially justified” or that “special circumstances” would make such an

The memoranda submitted in support of Plaintiff’s Motion for Summary Judgment and
billing entries submitted in support of Plaintiff’s Motion for Fees indicate that attorney
Michel Phillips also performed work on the Plaintiff’s case. [See Docs. 11 at 26, 14 at 6,
18-2].
1

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award unjust. 28 U.S.C. § 2412(d)(1)(A). Because the Court ordered this
case be remanded to the Commissioner pursuant to sentence four of 42
U.S.C. § 405(g), the Plaintiff is properly considered a “prevailing party” in this
action. See Shalala v. Schaefer, 509 U.S. 292, 302, 113 S.Ct. 2625, 2632,
125 L.Ed.2d 239 (1993).
While conceding that the Plaintiff is a prevailing party in this action and
thus is entitled to a fee award, the Commissioner argues that the hourly rates
charged and the number of hours claimed by the Plaintiff's attorneys are
excessive. Accordingly, the Commissioner argues that the Plaintiff's
requested fee award should be substantially reduced. [Doc. 20].
A.

Hourly Rate

With regard to an attorney's hourly rate, the EAJA provides, in pertinent
part, as follows:
The amount of fees awarded ... shall be based upon
prevailing market rates for the kind and quality of the
services furnished, except that ... attorney fees shall
not be awarded in excess of $125 per hour unless
the court determines that an increase in the cost of
living or a special factor, such as the limited
availability of qualified attorneys for the proceedings
involved, justifies a higher fee.

28 U.S.C. § 2412(d)(2)(A)(ii). The decision to grant an upward adjustment of
this statutory cap is a matter within the Court's sound discretion. Payne v.
3

Sullivan, 977 F.2d 900, 901 (4th Cir.1992).
The Plaintiff requests an hourly rate of $202.66 for services performed
by her attorneys in September 2018 and an hourly rate of $202.34 for
services performed by her attorneys in November 2018. [Doc. 18-2]. The
Plaintiff arrived at this rate by calculating the increase in the cost of living as
reflected by the Consumer Price Index (“CPI”) for all urban consumers of the
United States (hereinafter “CPI-Urban”).2 [See Doc. 18-3]. Using the CPIUrban, the Plaintiff calculated the percentage change between March 1996,
the time of the re-enactment of the EAJA statute, and the dates of services
performed in the case, and applied that percentage increase to the statutorily
set rate of $125. [See Docs. 18-2, 18-3].
The Commissioner’s single challenge to the Plaintiff's methodology in
calculating the hourly rate is the use of the CPI-Urban. [Doc. 20 at 2-4]. The
Commissioner suggests that the appropriate CPI for calculating the increase
in the cost of living is the CPI for south urban consumers (hereinafter “CPISouth”) because it “more particularly describes the area of the country at
issue in this case.” [Doc. 20 at 3]. Using the CPI-South, the Commissioner
calculates an adjusted hourly rate of $199.84 for services performed in

The Fourth Circuit has held that an adjustment for the “cost of living” to the EAJA
statutory ceiling “requires the use of a broad cost-of-living index.” See Sullivan v. Sullivan,
958 F.2d 574, 576 (4th Cir.1992).
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4

September 2018 and an adjusted hourly rate of $199.71 for services
performed in November 2018. [See Docs. 20 at 3–4; 20-1]. The
Commissioner, however, fails to provide any meaningful discussion or
authority in support of applying the CPI-South.3
The Court finds that the increase in the cost of living which occurred
since the EAJA was last amended in 1996 warrants an adjustment of the
statutory hourly rate and that the CPI-Urban is an appropriate measure by
which to calculate the adjustment. See Peek v. Astrue, No. 1:09CV301, 2010
WL 5211499, at *2 (W.D.N.C. Dec. 15, 2010) (noting that CPI-Urban is
“customarily” accepted as an appropriate measure to calculate an
adjustment of the statutory rate). Accordingly, the Court will apply the CPIUrban to calculate the cost of living adjustment and therefore will award the
Plaintiff fees based on an hourly rate of $202.66 for work performed by her
counsel in September 2018 and $202.34 for work performed in November
2018.

3

The Commissioner fails to even indicate what reduction results in applying the CPISouth rates to Plaintiff’s claimed amount. Notably, the reduction is not significant, as when
the CPI-South rates are applied the total reduction is only $134.31. In other words, the
Commissioner’s suggestion amounts to a reduction of less than one (1) hour of the
Plaintiff’s claimed amount.
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B.

Number of Hours Charged

Under the EAJA, an award of attorney's fees must be “reasonable,”
both with respect to the hourly rate charged and the number of hours
claimed. See Hyatt v. Barnhart, 315 F.3d 239, 248 (4th Cir.2002) (quoting 28
U.S.C. § 2412(d)(2)(A)(ii)). The fee applicant bears the burden of
demonstrating to the Court that the number of hours charged are reasonable.
See Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 76 L.Ed.2d 40
(1983). The Court has broad discretion to determine what constitutes a
reasonable fee award. See May v. Sullivan, 936 F.2d 176, 177 (4th Cir.1991)
(per curiam).
The Plaintiff’s attorneys claim a total of 48.3 hours for preparing the
summary judgment brief, including time spent reviewing the case file. [Doc.
18-2]. Attorney Phillips spent 30.3 hours reviewing the file and drafting the
summary judgment brief and 7.0 hours finalizing the summary judgment
brief, while attorney Piemonte spent 1.0 hour finalizing revisions to the
summary judgment brief. [Id. at 1 (entries on 9/5/2018 through 9/10/2018,
and entry on 9/12/2018)]. Attorney Phillips also spent 8.2 hours drafting the
reply brief and 0.8 hour finalizing the reply brief, while attorney Piemonte
spent 1.0 hour finalizing the revisions to the reply brief. [Id. at 1 (entries on
11/21/2018, 11/24/2018, 11/25/2018, 11/27/2018).
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The Commissioner argues the time spent preparing the briefs is
excessive and redundant. [Doc. 20 at 4-8]. Specifically, the Commissioner
argues that the time entries for reviewing the file and drafting the summary
judgment brief are vague and excessive considering the below average
length of the administrative record in this matter. [Id. at 4-5] Further, the
Commissioner argues that the time entries for finalizing the briefs are
duplicative and unnecessary. [Id. at 6-7]. On the other hand, the Plaintiff
argues that the time spent on the case was reasonable as evidenced by the
quality of the briefs, and that the time spent finalizing the briefs was not
redundant. [Doc. 21 at 3-7].
Upon careful review of the record in this matter and counsel’s time
entries, the Court finds that the hours claimed by the Plaintiff's attorneys in
litigating this matter are duplicative and excessive. The Plaintiff's attorneys
claim a total of 48.3 hours for the preparation of the summary judgment brief
and reply brief, including time spent reviewing the record and duplicative
finalization. Counsel, however, does not explain the distinction between
writing and “finalizing” each brief, or why such finalizing was undertaken by
both attorney Phillips and attorney Piemonte. Moreover, the Plaintiff’s brief
in this matter raises three issues that are quite commonly presented in this
Court, including by the Plaintiff’s counsel. In addition, the review of the
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record would likely have involved less effort than in an ordinary case,
considering the relatively small size of the administrative record.4
Accordingly, the Court will deduct a total of 7.0 hours from the time claimed
by attorneys Phillips and Piemonte with regard to the summary judgment
brief and further will deduct a total of 0.8 hour regarding the reply brief.
III.

CONCLUSION
After consideration of the deductions outlined above, the Court will

award the Plaintiff the following amount as an award of reasonable fees and
expenses under the EAJA:
31.3 attorney hours5 x $202.66

=

$6,343.26

9.2 attorney hours6 x $202.34

=

$1, 861.53

Total:

$8,204.79

The Plaintiff requests that the EAJA award be paid directly to Plaintiff’s
counsel as the Plaintiff’s assignee. In support of this request, the Plaintiff

4

The administrative record in this matter totals 374 pages. [See Docs. 8, 8-1].

5

This figure is arrived at by adding the total reasonable number of hours of work
performed by attorneys Phillips and Piemonte (31.3 hours) for the summary judgment
brief in September 2018.
6

This figure is arrived at by adding the total reasonable number of hours of work
performed by attorneys Phillips and Piemonte (9.2 hours) for the reply brief in November
2018.
8

has submitted a fee agreement executed by the Plaintiff, pursuant to which
the Plaintiff has agreed to assign any EAJA fee award in favor of counsel.
[Doc. 18-1]. The Court finds that the Commissioner should accept this
assignment of the awarded fees by the Plaintiff to counsel and upon receipt
of such assignment, the Commissioner shall pay that award of fees directly
to Plaintiff’s counsel, provided that it is shown that the Plaintiff does not owe
any debt to the United States Government which is subject to offset. See
Astrue v. Ratliff, 560 U.S. 586 (2010).

ORDER
IT IS, THEREFORE, ORDERED that:
(1)

The Plaintiff’s Motion [Doc. 17] is hereby GRANTED IN PART to
the extent that the Plaintiff is hereby awarded attorney’s fees in
the amount of Eight Thousand Two Hundred and Four Dollars
and Seventy–Nine Cents ($8,204.79), which sum is in full
satisfaction of any and all claims by the Plaintiff in this case
pursuant to 28 U.S.C. § 2412(d);

(2)

Within thirty (30) days of the entry of this Order, or some other
time as determined by the Court upon good cause shown, the
Commissioner shall inform Plaintiff’s counsel whether the
Plaintiff owes a debt to the Government by which this fee award
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may be offset. Before any funds are disbursed to counsel, the
Plaintiff’s counsel shall provide a valid fee assignment to the
Commissioner;
(3)

In the event that past-due benefits are awarded on remand, the
Plaintiff shall have sixty (60) days after being served with notice
of the past-due benefits award to file for an award of fees
pursuant to the Social Security Act, 42 U.S.C. § 406(b); and

(4)

No additional Petition pursuant to 28 U.S.C. § 2412(d) may be
filed.

IT IS SO ORDERED.
Signed: January 29, 2020

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