Harlan v. Astrue

Filing 30

ORDER granting,with modification 26 Motion for Attorney Fees. Signed by Magistrate Judge David Keesler on 4/23/2014. (eef)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
CIVIL ACTION NO. 3:12-CV-443-GCM-DCK
DUSTIN M. HARLAN,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.

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ORDER

THIS MATTER IS BEFORE THE COURT on Plaintiff’s “Petition For Attorney’s
Fees And Costs” (Document No. 26). This case has been referred to the undersigned Magistrate
Judge pursuant to 28 U.S.C. §636(b)(1)(B) and is now ripe for disposition. Having carefully
considered the motion, the record and applicable authority, the undersigned will grant the
motion, with modification.
BACKGROUND
Plaintiff’s “Complaint” seeking a reversal of the ALJ’s determination was filed in this
Court on July 20, 2012. (Document No. 1). “Plaintiff’s Motion For Summary Judgment”
(Document No. 17) and “Plaintiff’s Memorandum In Support Of Her Motion For Summary
Judgment” (Document No. 18) were filed February 25, 2013; and the “Commissioner’s Motion
For Summary Judgment” (Document No. 21) and “Memorandum In Support Of The
Commissioner’s Motion For Summary Judgment” (Document No. 22) were filed May 24, 2013.
On November 21, 2013, the undersigned issued a “Memorandum And Recommendation”
(Document No. 23) recommending that this matter be remanded for a new hearing and further
consideration. Neither party filed an objection to the “Memorandum And Recommendation.”

The Honorable Graham C. Mullen affirmed the “Memorandum And Recommendation” on
December 19, 2013. (Document No. 24).
The pending “Petition For Attorney’s Fees And Costs” (Document No. 26) was filed on
March 19, 2014. “Defendant’s Opposition To Plaintiff’s Petition For Attorney’s Fees Under The
Equal Access To Justice Act” (Document No. 28) was filed on April 7, 2014; and “Plaintiff’s
Reply…” (Document No. 29) was filed on April 16, 2014.
DISCUSSION
Plaintiff now seeks an award of attorney’s fees and costs pursuant to the Equal Access to
Justice Act, 28 U.S.C. § 2412 (d) (“EAJA”). (Document No. 26). Specifically, Plaintiff’s
petition requests a total of $7,530.00 for 38.8 hours of attorney time at $187 per hour, and 2.75
hours of paralegal time at $100 per hour. (Document No. 26, p.2; Document No. 26-1, pp.4-5).
The EAJA provides that:
. . . a court shall award to a prevailing party other than the United
States fees and other expenses, in addition to any costs awarded
pursuant to subsection (a), incurred by that party in any civil action
(other than cases sounding in tort), including proceedings for
judicial review of agency action, brought by or against the United
States in any court having jurisdiction of that action, unless the
court finds that the position of the United States was substantially
justified or that special circumstances make an award unjust. . . .
The court, in its discretion, may reduce the amount to be
awarded pursuant to this subsection, or deny an award, to the
extent that the prevailing party during the course of the
proceedings engaged in conduct which unduly and unreasonably
protracted the final resolution of the matter in controversy.
. . . The amount of fees awarded under this subsection shall be
based upon prevailing market rates for the kind and quality of the
services furnished . . . .
28 U.S.C. § 2412 (d).

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Defendant “agrees that Plaintiff reasonably expended services prior to the grant of
remand, and was thus the prevailing party within the meaning of the Act,” but argues that the
number of hours charged “are excessive and warrant reduction.” (Document No. 28, p.2).
Defendant notes that the Supreme Court has directed that “district courts are to exclude from fee
calculations ‘hours that were not reasonably expended.’” (Document No. 28, p.3) (quoting
Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)).
Specifically, Defendant argues that: (1) the 32 hours requested to prepare Plaintiff’s
motion for summary judgment is excessive and should be reduced to 20 hours; and that (2) the
$100 hourly rate for paralegal work is excessive and should be reduced to a rate of $65 per hour.
(Document No. 28, pp.3-4). Defendant notes that “Plaintiff’s counsels expended a number of
hours reviewing and revising the other’s work, which is redundant and excessive given each
counsel’s level of experience.” (Document No. 28, p.4). In conclusion, Defendant contends that
Plaintiff’s total EAJA award should not exceed $5,190.30.
In short, “Plaintiff’s Reply…” contends that Defendant seeks a “drastic reduction of
twelve hours” that is not supported by Defendant’s arguments. (Document No. 29). Plaintiff
concludes an award of $7,530, plus “an additional $374 for two hours of attorney’s time
preparing this reply . . . for a total of $7,904” is appropriate. Id.
The undersigned finds a recent decision from the United States District Court for the
Eastern District of North Carolina to be instructive.
“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. 2002) (citation omitted). “Ideally, the litigants will settle
the amount of a fee,” but “[w]here settlement is not possible, the
fee applicant bears the burden of establishing entitlement to an
award and documenting the appropriate hours expended.” Id.
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(internal quotation omitted). A court has great discretion to
determine the fee award so long as the fee is reasonable. Id. at
254. In determining the amount of the fee, a court may consider:
(1) “[t]he extent of a plaintiff’s success,” Id; (2) the novelty and
complexity of the issues presented, Bunn v. Bowen, 637 F.Supp.
464, 469 (E.D.N.C.1986); (3) the experience and skill of the
attorney, Id.; and (4) the typical range of compensated hours in a
particular field. Dixon v. Astrue, No. 5:06–CV–77–JG, 2008 WL
360989 *4 (E.D.N.C. Feb. 8, 2008).
Miles v. Colvin, 2014 WL 1309293, at *1 (E.D.N.C. March 28, 2014); see also Senechal v.
Astrue, 2011 WL 1843189, at *2 (W.D.N.C. May 16, 2011) (“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 Court has broad discretion to determine what constitutes a reasonable
fee award.”).
After careful consideration of the foregoing, the Court in its discretion will accept the
hourly rates as proposed by Plaintiff, but will reduce the number of hours for which Plaintiff’s
counsel should be compensated from 40.8 hours to 32 hours. Thus, 2.75 x $100 = $275 for
paralegal work + 32 x $187 = $5,984 for attorney work, equals a total of $6,259.00. The
undersigned observes that the issues presented by this action were neither novel nor complex,
and that EAJA fees requested for similar work are typically significantly less than those
requested by Plaintiff.
CONCLUSION
IT IS, THEREFORE, ORDERED that Plaintiff’s “Petition For Attorney’s Fees And
Costs” (Document No. 26) is GRANTED, with modification. The United States Social Security
Administration shall pay attorney’s fees in the amount of six thousand, two hundred, fifty-nine

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dollars ($6,259.00) in full satisfaction of any and all attorney’s fee claims Plaintiff may have in
this case under the EAJA.
Pursuant to the United States Supreme Court’s ruling in Astrue v. Ratliff, 560 U.S. 586
(2010), these attorney’s fees are payable to Plaintiff as the prevailing party, and are subject to
offset through the Treasury Department’s Offset Program to satisfy any pre-existing debt
Plaintiff may owe to the government. The Commissioner is directed to make the check payable
to Plaintiff and deliver the check to the office of Plaintiff’s counsel.
SO ORDERED.

Signed: April 23, 2014

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