De Nunez v. Commissioner of Social Security

Filing 25

Order granting in part and denying in part Plaintiff's Motion for attorney fees under EAJA(Related Doc # 22 ). See order for further details. Judge John R. Adams on 1/3/13.(L,J)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

FELICITA DE NUNEZ,
Plaintiff,
-vsCOMMISSIONER
OF SOCIAL SECURITY
Defendant.

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CASE NO. 1:11CV2285
JUDGE JOHN R. ADAMS

MEMORANDUM OF OPINION
AND ORDER

On October 29, 2012, Attorney Kirk Roose filed a motion for attorney fees for Plaintiff
Felicita DeNunez under the Equal Access to Justice Act (“EAJA”). The Commissioner has
responded in partial opposition to the motion, and Plaintiff has replied. The motion for attorney
fees is GRANTED IN PART AND DENIED IN PART as detailed herein.
I.

INTRODUCTION
The Sixth Circuit has recently explained the history of EAJA as follows:
The EAJA, enacted in 1980, provides for an award of attorney fees to a party
prevailing against the United States in a civil action when the position taken by
the Government is not substantially justified and no special circumstances exist
warranting a denial of fees. 28 U.S.C. § 2412(d)(1)(A); see also Perket v. Sec. of
H.H.S., 905 F.2d 129, 132 (6th Cir. 1990). The purpose of the statute is described
in its legislative history:
The [EAJA] rests on the premise that certain individuals ... may be
deterred from seeking review of ... unreasonable governmental
action because of the expense involved in securing the vindication
of their rights. The economic deterrents to contesting governmental
action are magnified in these cases by the disparity between the
resources and expertise of these individuals and their government.
The purpose of the bill is to reduce the deterrents and disparity by
entitling certain prevailing parties to recover an award of attorney
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fees, expert witness fees and other expenses against the United
States, unless the Government action was substantially justified.
H.R.Rep. No. 96-1418, at 5-6 (1980), reprinted in 1980 U.S.C.C.A.N. 4984,
4984. This statement indicates that Congress intended to make challenges to
unreasonable government action more accessible for certain individuals by
allowing them to recoup reasonable attorney fees and costs, should they prevail.
Bryant v. Commissioner, 578 F.3d 443, 445-46 (6th Cir. 2009).
The most useful starting point for determining the amount of a reasonable fee is the
number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate.
Hensley v. Eckerhart, 461 U.S. 424, 433 (1983); cf. Comm’r, I.N.S. v. Jean, 496 U.S. 154, 161
(1990) (“[O]nce a private litigant has met the multiple conditions for eligibility for EAJA fees,
the district court's task of determining what fee is reasonable is essentially the same as that
described in Hensley.” ) As such, this Court must excluded hours that were not “reasonable
expended.” Hensley, 461 U.S. at 434. Counsel, therefore, must make a good faith effort to
exclude from a fee request hours that are excessive, redundant, or otherwise unnecessary. Id.
Furthermore, under EAJA, the amount of attorney fees awarded:
shall be based upon the prevailing market rates for the kind and quality of 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). In requesting an increase in the hourly-fee rate, Plaintiffs bear the
burden of producing appropriate evidence to support any requested increase in the hourly rate.
See Blum v. Stenson, 465 U.S. 886, 898 (1984) (considering attorney fees under § 1988, the
Court stated, “[t]he burden of proving that such an adjustment is necessary to the determination
of a reasonable fee is on the fee applicant”). Plaintiffs must “produce satisfactory evidence-in
addition to the attorney’s own affidavits-that the requested rates are in line with those prevailing

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in the community for similar services by lawyers of reasonably comparable skill, experience, and
reputation.” Id. at 895 n. 11.
II.

LEGAL ANALYSIS
A. Eligibility
In the instant matter, the Government does not dispute that Plaintiff is eligible for an

award of fees. As such, the Government has conceded that its position was not substantially
justified. Therefore, the Court will now proceed to review the reasonableness of Plaintiff’s fee
request.
B. Reasonable Number of Hours
The fee application seeks an award of fees to Attorney Roose for 3.9 hours of time,
including 1.9 hours devoted to preparing this fee application. In addition, Plaintiff seeks fees for
18.5 hours of services performed by Attorney Eric Schnaufer.

These hours were devoted

primarily to preparing Plaintiff’s opening brief. Both attorneys seek compensation at an hourly
rate of $184.75. 1 Finally, the application seeks $40 per hour for 4.1 hours of work performed by
“appellate assistant” Diane Shriver.
1. Shriver’s activities
In evaluating the application for fees for Shriver, the Court is mindful of the following:
Purely clerical or secretarial tasks, that is, non-legal work, should not be billed—
even at a paralegal rate—regardless of who performs the work. Missouri v.
Jenkins by Agyei, 491 U.S. 274, 288 n. 10 (1989). For example, dictation and
typing are non-compensable, as they are part of the overhead of any law office.
See Wiegand v. Sullivan, 900 F.2d 261 (Table), 1990 WL 51387, at *1 (6th Cir.
1990) (affirming the district court’s reduction of fees). However, activities such as
filing a complaint, filing service requests, and filing return-of-service forms are
clerical tasks that may be considered sufficiently “legal work” to permit
compensation, although any compensation would be at a lesser rate. See Taylor v.
Barnhart, No. 00 c 7782, 2002 WL 31654944 at *4 (N.D.Ill. Nov.22, 2002). But
see Knudsen v. Barnhart, 360 F.Supp.2d 963, 977 (N.D.Iowa 2004) (finding that
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The Court will analyze below the proper hourly rate.
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retrieving documents, filing documents, serving summonses, and calendaring are
non-compensable because they are properly considered overhead costs); Barriger
v. Bowen, 673 F.Supp. 1167, 1170 (N.D.N.Y.1987) (finding that mailing two
letters and serving the Assistant United States Attorney with a copy of a summons
and complaint are non-compensable because they are properly considered
overhead costs).
Rodriguez v. Commissioner, 2012 WL 2905928, at *3 (N.D.Ohio July 16, 2012). In the instant
matter, Shriver’s activities include 1.6 hours for review Court emails. The Court finds that
“reviewing” Court emails is noncompensable. Based upon the Court’s knowledge, these emails
are electronic notices of Court filings. Monitoring these emails should be subsumed within
overhead costs and therefore is not compensable. The Court finds that the remaining 2.5 hours
include filing the complaint, filing a notice with the Court, and filing Plaintiff’s brief are
properly categorized as legal work. Therefore, 2.5 hours Shriver’s activities are compensable.
Neither party has presented argument about the proper hourly rate for Shriver. Given the limited
number of hours compensable, the Court finds that her $40 per hour rate is reasonable in this
instance.
2. Attorney Hours
The Commissioner does not challenge the reasonableness of the hours claimed by both
counsel in this matter. The Court’s review indicates 22.4 hours to file the complaint, a 17-page
brief, and a 10-page reply brief falls within the realm of reasonable. Accordingly, these 22.4
hours are compensable.
C. Hourly Rate
Finally, the Court must examine the issue that Attorney Roose has allegedly spent over
150 hours researching and briefing in approximately a dozen cases within this District. The
Court must determine the properly hourly rate for the work performed by the attorneys herein.
The Court previously rejected Attorney Roose’s contention that he had supplied sufficient
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information to warrant an increase in the hourly rate in English v. Commissioner, 1:11CV2794.
The Court reiterates its findings herein.
Plaintiff argues extensively about the impact of Bryant and challenges the interpretation
of that case by the Commissioner in other matters. However, Bryant clearly held as follows: “In
fact, in both cases, Plaintiffs submitted only the Department of Labor’s Consumer Price Index,
arguing that the rate of inflation supported an increase in fees. This is not enough, and the district
court did not abuse its discretion in denying Plaintiffs’ requests.” Bryant, 578 F.3d at 450
(emphasis added). In the instant matter, it is clear that Plaintiff did not solely rely upon the CPI
in support of his request. Accordingly, while Bryant’s holding may assist the Court in some
manner, it offers very little to aid the Court’s analysis because of the significantly larger quantity
of evidence produced by Plaintiff in this matter.
Plaintiff also challenges the holding in an out-of-Circuit case, Mathews-Sheets.
Mathews-Sheets, the Seventh Circuit noted as follows:
The Equal Access to Justice Act does not authorize an award of the prevailing
hourly rate, as such, unless it is less than $125 an hour. For that matter it doesn't
authorize an award of $125 per hour, or even $125 plus inflation. The $125 rate is
a presumptive ceiling; to justify a higher rate the plaintiff must point to inflation
or some other special factor. Floroiu v. Gonzales, 498 F.3d 746, 749 (7th Cir.
2007) (per curiam); Muhur v. Ashcroft, 382 F.3d 653, 656 (7th Cir. 2004); Healey
v. Leavitt, 485 F.3d 63, 68–71 (2d Cir. 2007). If he points to inflation he still must
show that it actually justifies a higher fee; for while it might seem obvious that a
statutory price ceiling should be raised in step with inflation, to do that as a rote
matter would produce windfalls in some cases. Inflation affects different markets,
and different costs in the same market, in different ways. The framers of the Equal
Access to Justice Act were right therefore not to create an entitlement to an
inflation adjustment; the lawyer seeking such an adjustment must show that
inflation has increased the cost of providing adequate legal service to a person
seeking relief against the government. Bryant v. Commissioner of Social Security,
578 F.3d 443, 450 (6th Cir. 2009); May v. Sullivan, 936 F.2d 176, 178 (4th Cir.
1991) (per curiam); Headlee v. Bowen, 869 F.2d 548, 552 (10th Cir. 1989); Baker
v. Bowen, 839 F.2d 1075, 1084 (5th Cir. 1988); but cf. Johnson v. Sullivan, 919
F.2d 503, 505 (8th Cir. 1990) (intimating a presumption in favor of a cost of
living adjustment).
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In

Mathews-Sheets, 653 F.3d at 563. The Seventh Circuit then went on to clarify its discussion:
It might seem that because the cost of living special factor is not automatic, the
two enumerated special factors merge; the lawyer arguing for a cost of living
increase must show limited availability of lawyers able to handle such a case. But
that is not correct. Inflation might have an impact across a range of fields of
practice that would make it difficult to hire a competent lawyer even in a rather
routine case in a field of law by no means esoteric; in such a situation a fee above
the statutory fee might well be justified. When inflation is not a factor, the lawyer
does have to show that there is something special about the particular type of case
that justifies the higher fee. That special factor has not been invoked in this case.
And so on remand the plaintiff’s lawyer will have to show that without a cost of
living increase that would bring the fee award up to $170 per hour, a lawyer
capable of competently handling the challenge that his client mounted to the
denial of social security disability benefits could not be found in the relevant
geographical area to handle such a case.
Id. at 565. This final paragraph, however, has certainly not been universally accepted:
With all due respect to Judge Posner’s analysis in Matthews–Sheets, no Court
within the Sixth Circuit has required proof that no competent attorney exists in the
[immediate geographical] area to handle a plaintiff’s case at the statutory rate, in
order to prove entitlement to a rate increase. Proving a negative is always
difficult, but proving the negative proposition as phrased by Defendant suggests a
nearly impossibly high bar for recovery of an award in excess of the statutory
rate. Reference to two social security attorneys in just two cases, absent any
evidence that those cases were similar in difficulty or that the attorneys involved
had equal reputations, skill sets, and experience, is not grounds for reduction of
the claimed fee so long as Plaintiff has otherwise carried his or her burden to
exceed the statutory rate.
Russell ex rel. Roach v. Astrue, 2012 WL 1902550, at *2 (S.D.Ohio Apr. 11, 2012).
In performing its analysis, the Court is mindful that the statutory language that allows for
an increase in the hourly rate under EAJA is written in the disjunctive. That is to say, a cost of
living increase may warrant an upward adjustment or a special factor such as a lack of qualified
attorneys may warrant such an adjustment. See Gonzalez v. Astrue, 2012 WL 1633937, at *2
(S.D.Ind. May 9, 2012) (“Although a sentence can be plucked out of the opinion in Mathews–

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Sheets to support this argument [that the two prongs merge], the Commissioner has conflated the
two separate bases under the EAJA that justify a rate higher than the $125 cap.”).
Similar to the plaintiff in Mathews-Sheets, Plaintiff does not seek an increase in the
hourly rate for a special factor. Instead, Plaintiff seeks an increase based upon inflation. The
members of this district appear to be in disagreement about what quantum of evidence is
sufficient to warrant an increase.

See Keyes v. Commissioner, Case No. 1:11CV312, Doc. 28

(denying an increase in fees upon finding that Plaintiff had not demonstrated that prevailing rate
exceeded the statutory cap); but also see Hakkarainen v. Commissioner, Case No. 1:10CV2463,
Doc. 45 (Report and Recommendation) (concluding that more than sufficient evidence was
presented to justify the increased hourly rate).
In order to demonstrate the prevailing market rate, Plaintiff provided “The Survey of Law
Office Economics, 2011 Edition,” counsels’ resumes, and the national CPI for legal services. 2 A
colleague on this Court recently found such materials to be sufficient to warrant an increase.
“The Court finds that Jaworski’s additional evidence is sufficient to support a cost-of-living
increase, as it demonstrates that: (1) increases in law firm expenses in the relevant time frame
have outpaced cost-of-living increases, and (2) that the requested fee is less than or equal to both
the average and median rates in Ohio with respect to administrative law practice.” Jaworski v.
Commissioner, 1:10CV2936, Doc. 32.
In resolving the issue, the Court finds itself in agreement with its colleagues on this Court
that have found the evidence relied upon by Plaintiff to be insufficient to warrant the requested
increase in the hourly rate. See Jones v. Commissioner, 1:10CV2568; Keyes v. Commissioner,
1:11CV312. Accordingly, the award of fees shall be limited to $125 per hour.

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Plaintiff incorporated these documents by reference in his motion to his prior filing in Elson v. Commissioner,
3:11CV183.
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III.

CONCLUSION
Plaintiff’s motion for EAJA fees is GRANTED IN PART AND DENIED IN PART.

Appellate assistance Shriver’s 2.5 hours at $40 per hour results in $100. The Court finds that
22.4 hours of attorney time is compensable at $125 per hour for a total of $2800.00.
Accordingly, the motion is GRANTED IN PART and the total award of fees is $2,900.
Moreover, the Court declines to award the $32 sought for copying costs. First, Plaitniff
has failed to demonstrate that copies were reasonable or necessary.

Additionally, the Court

finds that those costs – including creating a “file” copy of documents are properly subsumed in
overhead. Finally, if the Court were to reach the ultimate amount, it would conclude that 25
cents per copy is excessive. Accordingly, the Court declines to award costs for copying in this
matter.
Consistent with Plaintiff’s agreement, the amount shall be made in Plaintiff’s name so
that any pre-existing debt to the Government may be offset before any amount is assigned to
counsel.
IT IS SO ORDERED.

Dated: January 3, 2013

/s/ John R. Adams_______________
JOHN R. ADAMS
UNITED STATES DISTRICT JUDGE

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