Stacy v. Berryhill
Filing
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ORDER granting in part 18 Motion for Attorney Fees. Signed by District Judge Martin Reidinger on 1/29/2020. (brl)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
CIVIL CASE NO. 3:18-cv-00279-MR-WCM
DOROTHY P. STACY,
)
)
Plaintiff,
)
)
vs.
)
)
ANDREW SAUL, Commissioner
)
of Social Security,
)
)
Defendant.
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_______________________________ )
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. 18].
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
August 6, 2018. [Doc. 4]. Thereafter, the parties filed their respective Motions
for Summary Judgment and memoranda in support thereof. [Docs. 6, 7, 10,
11].
On August 9, 2019, the Magistrate Judge issued a Memorandum and
Recommendation on the parties respective Motions for Summary Judgment.
[Doc. 15]. On August 26, 2019, the Court entered an Order accepting the
Magistrate Judge’s Memorandum and Recommendation and remanded the
case to the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g).
[Doc. 16]. On November 11, 2019, the Plaintiff filed a Motion for Fees
pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412(d). [Doc. 18].
Specifically, the Plaintiff seeks an award in the amount of $9,476.00,
representing 46.0 hours of total work performed by her attorneys Denise
Sarnoff1 and George Piemonte at the rate of $206.00, as well as an award
of costs in the amount of $400.00. [See Docs. 18, 20-2]. On December 4,
2019, the Commissioner filed a Memorandum in Opposition to the Plaintiff's
request for attorney's fees.2 [Doc. 22]. On December 10, 2019, the Plaintiff
filed a Reply to the Commissioner’s Memorandum in Opposition. [Doc. 23].
Having been fully briefed, this matter is ripe for disposition.
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
Denise Sarnoff also performed work on the Plaintiff’s case. [See Docs. 7 at 27, 14 at 6,
20-2].
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2
The Commissioner does not object to an award of $400.00 in costs. [Doc. 22 at 1].
2
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
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. 22].
A.
Hourly Rate
With regard to an attorney's hourly rate, the EAJA provides, in pertinent
part, as follows:
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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.
Sullivan, 977 F.2d 900, 901 (4th Cir.1992).
The Plaintiff requests an hourly rate of $206.00 for services performed
by her attorneys from May 2018 through November 2019. [Docs. 18, 20-2].
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”) as of August 2019.3 [See Doc.
20 at 3-4]. As the Commissioner correctly points out, the Plaintiff’s rate does
not accurately reflect the increase in the cost of living for the services
provided prior to August 2019. Using the Plaintiff’s method of calculation of
a single rate reflecting only “the cost of living in [August 2019] for all [two]
years to calculate the amount of attorney's fees would result in a de facto
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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award of pre-judgment interest, which would constitute an abuse of
discretion.” Kerin v. U.S. Postal Serv., 218 F.3d 185, 194 (2d Cir. 2000). As
such, the Commissioner argues, that the Plaintiff should have calculated the
percentage change for cost of living between March 1996, the time of the reenactment 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.
The Commissioner also challenges the Plaintiff's use of the CPI-Urban
in calculating the hourly rate. [Doc. 22 at 3-5]. The Commissioner submits
that the most accurate CPI for calculating the increase in the cost of living is
the CPI for south urban consumers (hereinafter “CPI-South”). [Doc. 22 at 4,
fn.1]. Using the CPI-South, the Commissioner calculates an adjusted hourly
rate range of $199.54 to $202.94 for services performed from May 2018
through October 2019.4 [Doc. 22 at 4–5]. The Commissioner, however, does
not provide any meaningful discussion in support of applying the CPI-South.5
The Court finds that the increase in the cost of living which occurred
4
The Commissioner notes that the calculation does not include the services performed
in November 2019, as the information for November 2019 was not yet available. [Doc. 22
at 4, fn. 2].
5
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, at the most, $297.16. In other
words, the Commissioner’s suggestion amounts to a reduction of less than two (2) hours
of the Plaintiff’s claimed amount.
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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 annual
aggregated6 CPI-Urban for 2018 and 2019 to calculate the cost of living
adjustment and therefore will award the Plaintiff fees based on an hourly rate
of $201.58 for work performed by her counsel in 2018 and $205.23 for work
performed in 2019.
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
6
The CPI-Urban aggregated annual amount is $251.10 for 2018 and $255.65 for 2019.
See United States Department of Labor, Bureau of Labor Statistics, The Consumer Price
Index for All Urban Consumers from 2018 to 2019, available at https://data.bls.gov/cgibin/surveymost?cu (last visited January 24, 2020).
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(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 46.0 hours for work performed
in this case. [Doc. 20-2]. Attorney Sarnoff spent 41.357 hours reviewing the
file and drafting the summary judgment briefs, while attorney Piemonte spent
2.0 hours finalizing revisions to the summary judgment briefs. [Id. at 1
(entries on 9/24/2018 through 9/27/2019, entries on 10/05/2018 and
1/29/19)].
The Commissioner argues the time spent preparing the briefs is
excessive and redundant. [Doc. 22 at 5-9]. Specifically, the Commissioner
argues that the Plaintiff claims 7.5 hours for drafting a brief on September
27, 2019, a month after the Court entered a Judgement in this case. [Id. at
5-6]. Further, the Commissioner argues that the time entries for finalizing the
briefs are duplicative and unnecessary. [Id. at 7-9]. On the other hand, the
Plaintiff argues that the time spent on the case was reasonable and that the
time spent finalizing the briefs was not redundant. [Doc. 23 at 3-6].
The Plaintiff’s billing entries reflect that time is documented using the 0.1 hour increment,
however, it appears that the Plaintiff at times uses a .25 increment to keep time. [Doc. 202 (entries on 1/28/19 and 8/09/19)]. The Plaintiff offers no explanation for the discrepancy
in the billing entries.
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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 unwarranted. The Plaintiff's attorneys claim a total of
46.0 hours for the preparation of the summary judgment brief and reply brief,
including time spent reviewing the record and finalization. Counsel, however,
does not explain the 7.5 hours of time claimed by attorney Denise Sarnoff
for working on a brief one month after the Judgment in this case was entered.
Accordingly, the Court will deduct a total of 7.5 hours from the time claimed
by attorney Sarnoff for preparing a summary judgment brief after the entry of
a Judgment in this case.
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:
29.9 attorney hours8 x $201.58
=
$6,027.24
8.6 attorney hours9 x $205.23
=
$1,764.97
Total:
$7,792.21
8
This figure is arrived at by adding the total reasonable number of hours of work
performed by attorneys Sarnoff and Piemonte (29.9 hours) for the summary judgment
briefs in 2018.
9
This figure is arrived at by adding the total reasonable number of hours of work
performed by attorneys Sarnoff and Piemonte (8.6 hours) for the briefs in 2019.
8
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 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.
20-1]. 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. 18] is hereby GRANTED IN PART to
the extent that the Plaintiff is hereby awarded attorney’s fees in
the amount of Seven Thousand Seven Hundred and Ninety-Two
Dollars and Twenty-One Cents ($7,792.21), 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);
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(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
may be offset. Before any funds are disbursed to counsel, the
Plaintiff’s counsel shall provide a valid fee assignment to the
Commissioner;
(3)
IT IS FURTHER ORDERED that Four Hundred Dollars ($400.00)
in costs shall be reimbursed to the Plaintiff from the Treasury
Judgment Fund upon certification thereof by the Office of the
United States Attorney to the Department of Treasury.
(4)
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
(5)
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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