Rodriguez v. Commissioner of Social Security
Filing
29
Memorandum Opinion and Order granting in part and denying in part 24 Plaintiff's Motion for attorney fees. Plaintiff is awarded a total of $7,610.69 to fully satisfy all reasonable attorney's fees, expenses, and costs incurred under EAJA. Magistrate Judge Nancy A. Vecchiarelli on 7/16/2012. (G,W)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
MIGUEL J. RODRIGUEZ,
Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.
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CASE NO. 3:11-cv-398
MAGISTRATE JUDGE
VECCHIARELLI
MEMORANDUM OPINION AND
ORDER
Plaintiff, Miguel J. Rodriguez (“Plaintiff”), filed a motion for attorney’s fees,
expenses, and costs in the amount of $5,210.22 pursuant to the Equal Access to
Justice Act (“EAJA”), 28 U.S.C. § 2412. (Doc. No. 24.) Defendant, Michael J. Astrue,
the Commissioner of Social Security (“the Commissioner”) does not oppose an award
under EAJA, but (1) seeks a reduction in the number of hours of services rendered by
Plaintiff’s counsel’s “Appellate Assistant,” (2) seeks a reduction in the rate at which
counsel’s hours were billed; and (3) challenges to whom any award may be made
payable.1 (Doc. No. 25.)
Plaintiff also seeks a supplemental award of attorney’s fees in the amount of
$1,679.49 for services rendered in replying to the Commissioner’s response in
opposition to his EAJA application (Doc. No. 26); and a supplemental award of
attorney’s fees in the amount of $1,011.30 for services rendered in preparing an
evidentiary supplement to his EAJA application pursuant to this Court’s order (Doc. No.
28). The Commissioner has not opposed Plaintiff’s supplemental requests.
For the reasons set forth below, Plaintiff’s motion for EAJA fees is GRANTED in
part and DENIED in part; that is, Plaintiff is awarded a total of $7,610.69 to fully satisfy
all reasonable attorney’s fees, expenses, and costs incurred under EAJA.
I.
PROCEDURAL HISTORY
On March 30, 2006, Plaintiff filed applications for a Period of Disability, Disability
Insurance Benefits, and Supplemental Security Income, and alleged a disability onset
date of August 22, 2004. His applications were denied initially and upon
reconsideration, so he requested a hearing before an administrative law judge (“ALJ”).
On April 9, 2009, an ALJ held Plaintiff’s hearing. On May 14, 2009, the ALJ found
1
The Commissioner also argues that Plaintiff mislabeled his request for $40.00
for making copies of legal documents an “expense,” as it should be labeled a
“cost.” The Commissioner continues that, “given the nature of electronic court
filing and docketing, as well as electronic communication available to Plaintiff’s
counsel, one questions the necessity of making any paper copies at all, even if
designated as a cost.” (Def.’s Response 7.) The Commissioner does not,
however, argue that Plaintiff should be denied $40.00 in costs related to
making copies of legal documents.
2
Plaintiff not disabled. The Appeals Council declined to review the ALJ’s decision, so
the ALJ’s decision became the Commissioner’s final decision.
On February 24, 2011, Plaintiff filed his complaint to challenge the
Commissioner’s final decision; and on July 25, 2011, he filed his Brief on the Merits.
Plaintiff alleged that the ALJ’s assessments of the opinions a treating physician and
state agency psychologists were not supported by substantial evidence. On February
6, 2012, the Court reversed the Commissioner’s final decision and remanded this case
because the ALJ failed to give good reasons for giving Plaintiff’s treating physician’s
opinions less than controlling weight, and failed to explain how one of the state agency
reviewing psychologist’s opinions supported the ALJ’s determination when they
appeared to contradict it. (Doc. No. 22.)
On April 30, 2012, Plaintiff filed his EAJA application. (Doc. No. 24.) Plaintiff
seeks an initial award of $5,210.22, the breakdown of which is as follows:
•
$884.89 for services rendered by attorney Kirk B. Roose, for 4.9 hours of
services rendered between April 14, 2011, and April 26, 2012, at a rate
of $180.59 per hour;
•
$4,081.33 for services rendered by attorney Eric Schnaufer, for 22.6
hours of services rendered between June 15, 2011, and February 7,
2012, at a rate of $180.59 per hour;
•
$204.00 for services rendered by “Appellate Assistant” Diane J. Shriver,
for 5.1 hours of services rendered between February 24, 2011, and
February 6, 2012, at a rate of $40.00 per hour;
•
$40.00 for the cost of making copies of the complaint, briefs, and EAJA
application, based on a total of 160 pages at $0.25 per page.
(See Doc. No. 24.)
On May 14, 2012, the Commissioner filed his response. (Doc. No. 25.) The
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Commissioner does not oppose an award under EAJA, but seeks a reduction in the
number of hours of services rendered by Ms. Shriver and in the rate at which counsel’s
hours were billed, and challenges to whom any award may be made payable.
On May 28, 2012, Plaintiff filed a reply brief. (Doc. No. 26.) In his reply, Plaintiff
seeks an additional $1,679.49 in attorney’s fees, based on 9.3 hours of services
rendered by Mr. Roose on May 27 and 28, 2012, in relation to the reply. The
Commissioner did not respond to Plaintiff’s request for a supplemental award.
On June 28, 2012, the Court ordered Plaintiff to supplement his EAJA
application with additional evidentiary support and directed the Commissioner to file any
response within seven days. (Doc. No. 27.) On July 5, 2012, Plaintiff filed his
supplemental EAJA application and requested an additional award of $1,011.30 for
services rendered by Mr. Roose in relation to preparing it. (Doc. No. 28.) The
Commissioner did not respond to Plaintiff’s supplemental EAJA application and
additional request for fees.
II.
LAW & ANALYSIS
EAJA permits an award of only reasonable attorney’s fees. See 28 U.S.C.
§2412(d)(2)(A). 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.”) The
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Court will address the Commissioner’s objections to the reasonableness of hours
expended and billing rate in turn.
A.
The Reasonableness of Hours Expended on Services Rendered
Counsel for a prevailing party under EAJA should make a good faith effort to
exclude from a fee request hours that are excessive, redundant, or otherwise
unnecessary. See Hensley, 461 U.S. at 434. Courts should exclude hours that were
not “reasonably expended.” Id. The Commissioner contends that Plaintiff should not
be compensated for the 5.1 hours of services rendered by Ms. Shriver because her
services were purely clerical or secretarial. However, as explained below, some of Ms.
Shriver’s work is compensable.
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 retrieving documents, filing documents, serving
summonses, and calendaring are non-compensable because they are properly
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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).
Ms. Shriver expended time on matters that appear both legal and non-legal in
nature. Accordingly, Ms. Shriver’s hours are reduced as follows:
•
•
On March 11, 2011, Ms. Shriver expended 0.9 hours reviewing a variety
of emails from the court, and preparing and filing a “certificate confirming
notification of case information.” Plaintiff will be compensated for 0.3
hours for preparing and filing the certificate confirming notification.
•
On April 12 and May 27, 2011, Ms. Shriver expended a total of 0.6 hours
reviewing emails from the court regarding returns of service and the
Commissioner’s answer and transcript; preparing copies of the answer
and transcript and sending them to counsel; and “redocketing.”2 Plaintiff
will not be compensated for this time, as the services rendered appear
purely clerical and secretarial in nature.
•
On July 26, 2011, Ms. Shriver expended 0.2 hours filing Plaintiff’s Brief
on the Merits and sending a copy of the brief to Plaintiff. Plaintiff will be
compensated 0.1 hour for filing the brief.
•
Between September 8 and October 12, 2011, Ms. Shriver expended 0.5
hours reviewing emails from the court and forwarding some of the emails
to counsel. Plaintiff will not be compensated for this time, as it appears
purely clerical and secretarial in nature.
•
2
On February 24, 2011, Ms. Shriver expended 2.1 hours preparing and
filing the complaint and associated paperwork, sending copies to Plaintiff,
and reviewing emails from the court. Plaintiff will be compensated for 1.0
hour for preparing and filing the complaint.
On October 27, 2011, Ms. Shriver expended 0.2 hours filing Plaintiff’s
reply brief and sending a copy of the brief to Plaintiff. Plaintiff will be
compensated for 0.1 hours for filing the brief.
It is not clear what “redocketing” is.
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•
On November 22, 2011, Ms. Shriver expended 0.2 hours conferring with
the court regarding consenting to the Magistrate Judge’s jurisdiction, and
preparing and mailing consent forms. Plaintiff will be compensated for
this time.
•
On November 29, 2011, and February 6, 2012, Ms. Shriver expended 0.4
hours reviewing emails from the court, sending a copy of the court’s
memorandum opinion and order and a letter to Plaintiff, emailing counsel,
and “redocketing.” Plaintiff will not be compensated for this time, as it
appears purely clerical and secretarial in nature.
In sum, Plaintiff will be compensated for 1.7 hours of Ms. Shriver’s time. As the
Commissioner has not objected to Plaintiff’s proposed rate of $40.00 per hour, and the
Court finds that rate reasonable and appropriate, that rate will be applied. Accordingly,
Plaintiff will be awarded $68.00 for services rendered by Ms. Shriver.
B.
The Appropriate EAJA Billing Rate for Attorney’s Fees
EAJA provides that “[t]he amount of fees awarded . . . shall be based upon
prevailing market rates for the kind and quality of the services furnished,” and “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); see Bryant v. Comm’r of Soc. Sec., 578 F.3d 443, 449-50 (6th Cir.
2009). Here, Plaintiff seeks EAJA fees for counsel’s work at an hourly billing rate of
$180.59 per hour—an upward departure from the $125.00 cap based an increase in the
cost of living caused by inflation since 1996.
In requesting an increase beyond the $125.00 per hour rate cap under EAJA,
plaintiffs bear the burden of producing appropriate evidence to support the requested
increase. Bryant, 578 F.3d at 450. That is, plaintiffs “must produce satisfactory
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evidence—in addition to the attorney’s own affidavits—that the requested rates are in
line with those prevailing in the community for similar services by lawyers of reasonably
comparable skill, experience, and reputation.” Id. (quoting Blum v. Stenson, 465 U.S.
886, 895 n.11 (1984)). It is within the courts discretion to award EAJA fees at a rate
greater than $125.00 per hour. See Begley v. Sec’y of Health & Human Servs., 966
F.2d 196, 199 (6th Cir.1992).
Plaintiff explains that the appropriate hourly billing rate under EAJA for services
rendered each year is determined by dividing the United States Bureau of Labor and
Statistics' Consumer Price Index (“CPI”)3 for the year in which services were rendered
by the CPI for March 1996, and then multiplied by $125.00. See also Lopez v. Comm’r
of Soc. Sec., No. 3:08-cv-2148, 2010 WL 1957422, at *3 (N.D. Ohio May 14, 2010)
(“The Magistrate has routinely calculated the cost of living adjustment by accounting for
increases in the cost of living between the time the $125 fee was enacted and the time
that the fee was earned . . . by comparing the CPI from March 1996 . . . to the average
annual CPI during the year that counsel rendered his or her services.”). Plaintiff’s
calculation of his requested cost-of-living increase is based on the “U.S. City Average”
for “all items” for “all urban consumers” in 2011.4 Accordingly, Plaintiff explains that the
EAJA rate in this case is 224.939 divided by 155.7 and then multiplied by $125.00,
3
The Bureau of Labor and Statistics’ CPI calculator may be found online at
http:// www.bls.gov/data/#prices (last visited July 13, 2012).
4
Plaintiff seeks a cost-of-living increase based on inflation between March 1996
and only 2011 because most of his counsel’s services were rendered in 2011.
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which equals $180.59.5
The Sixth Circuit has held that the CPI, alone, is insufficient evidence to warrant
an award of EAJA fees at a rate greater than $125.00. Bryant, 578 F.3d at 450. In
Plaintiff’s initial EAJA application, Plaintiff provided the resumes and time sheets of his
counsel and counsel’s staff in support of the requested cost of living increase along with
the CPI. (Doc. Nos. 24-1 through 6.) The Commissioner contended that Plaintiff’s
showing remained insufficient. Upon this Court’s order, Plaintiff supplemented his
EAJA application with the following additional evidence:
•
A report from the Ohio State Bar Association titled The Economics of Law
Practice in Ohio, Desktop Reference for 2010 indicates that the average
hourly billing rate of attorneys in the greater Cleveland area in 2010 was
$239.00 (Doc. No. 28-1);
•
A report from the National Law Journal and ALM Legal Intelligence titled
The Survey of Law Office Economics, 2011 Edition indicates that the
value of services rendered by attorneys since 1985 has increased at a
rate faster than inflation (Doc. No. 28-2); and
•
The CPI and a table from the Bureau of Labor and Statistics indicate an
increase in the value of legal and clerical services over time (Doc. Nos.
28-3 and 4).
The Commissioner has not challenged the adequacy of this additional evidence. The
Court concludes that Plaintiff’s evidence adequately supports a cost-of-living increase in
Plaintiff’s EAJA fee rate.6
5
These CPI values are not seasonally adjusted.
6
In Zellner, Senior District Judge Spiegel expressed that “in the future what we
will require to comport with Bryant[] will be affidavits from other members of the
local bar in which they testify as to their years of experience, skill, and
reputation, and thus their consequent hourly rate,” and “[m]ost preferable would
be the results of a fee survey conducted by a state or local bar association
committee comprised of lawyers in the social security area of practice.”
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The Commissioner also contends that Plaintiff’s calculation should be based on
the “Midwest” CPI rather than the “U.S. City Average” CPI. The Court agrees that the
“Midwest” CPI appears to be the more appropriate measure of the increase in the cost
of living for purposes of EAJA. There is a split among courts regarding which CPI is
most appropriate for determining a cost of living increase under EAJA. See Jawad v.
Barnhart, 370 F. Supp. 2d 1077, 1083-85 (S.D. Cal. 2005) (collecting cases). Although
courts in this District have accepted cost-of-living increases based on the “U.S. City
Average” CPI, they often did so because the final EAJA award remained reasonable
and appropriate under the facts of those cases. The “Midwest” CPI nevertheless
appears more appropriate, as in this Circuit prevailing parties must show that their
requested rates are in line with those prevailing in the community, not the nation. But
see id. at 1085 (holding that “the national index is the more appropriate source to
determine the cost-of-living adjustment under the EAJA” because “the national CPI-U is
not only consistent with the established trend in the Ninth Circuit, it is consistent with
the plain language of 28 U.S.C. § 2412(d)(2)(A) itself”). The calculation for a cost-ofliving increase between March 1996 and 2011 based on the “Midwest” CPI for “all
items” for “all urban consumers” is 214.743 divided by 151.7 and then multiplied by
$125.00, which equals $176.95.7
Zellner, 2012 WL 273937, at *3. This Court, however, is not aware of any legal
authority from the Sixth Circuit that requires such a specific evidence showing
to justify a cost-of-living increase in the EAJA fee rate.
7
The Commissioner proposes that the “Midwest” CPI for the first half of 2011
(213.47) should be used in the calculation instead of the annual average
“Midwest” CPI, and that the resulting rate would be $178.00. The
Commissioner’s mathematical calculation is incorrect, as the resulting rate
10
Plaintiff’s evidence permits the reasonable inference that the value of legal
services in this community since March 1996 has increased because of inflation; and a
comparison to the rates other attorney’s in this community charge for their services
supports the conclusion that a rate of $176.95 per hour in this case is reasonable and
appropriate.
C.
Calculation of Plaintiff’s EAJA Award
Plaintiff’s counsel expended a total of 27.5 hours on services rendered through
Plaintiff’s initial EAJA application. Plaintiff will be compensation for those hours at a
rate of $176.95 per hour, for a total of $4,866.13.
Plaintiff also seeks compensation for hours of services rendered by his counsel
related to his reply brief and supplemental application. The value of services rendered
in defending the propriety of an EAJA award may be compensable under EAJA. See
Spurlock v. Sullivan, 790 F. Supp. 979, 982 (N.D. Cal. 1992) (citing I.N.S. v. Jean, 496
U.S. 154 (1990)) (“[A]n award of attorney fees under the EAJA should encompass not
only the fees incurred in the litigation on the merits, but also the fees incurred by the
prevailing party in protecting that fee award in subsequent litigation by the government
over the propriety or amount of the EAJA fee award.”) The Commissioner has not
challenged Plaintiff’s supplemental requests for fees. Accordingly, Plaintiff will be
awarded attorney’s fees for his counsel’s work on the reply brief and supplemental
application, as well.
under those circumstances is $175.90. Moreover, as Plaintiff’s counsel’s
services were rendered throughout 2011, the Court finds Plaintiff’s reliance on
the annual average CPI (214.743) justified.
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Plaintiff states that his counsel expended 9.3 hours on the reply brief and 5.6
hours on the supplemental application; and he seeks compensation for that time at the
rate of $180.59 per hour based on the “U.S. City Average” CPI. (Pl.’s Reply 12; Pl.’s
Supp. 14.) As the “Midwest” CPI appears to be the more appropriate measure of a
cost-of-living increase under EAJA, Plaintiff will be compensated for those hours at a
rate of $176.95 per hour, for a total of $2,636.56.
Plaintiff also is awarded $68.00 for services rendered by Ms. Shriver, and $40.00
in costs. Accordingly, and as outlines in the table below, Plaintiff’s total award under
EAJA is $7,610.69. This award is reasonable and appropriate under the circumstances
of this case.
Hours
Requested
Hours
Approved
Rate/Value
Requested
Rate/Value
Approved
Award
Approved
Roose
(initial app.)
4.9
4.9
$180.59
$176.95
$867.06
Roose
(reply brief)
9.3
9.3
$180.59
$176.95
$1,645.64
Roose
(supp. app.)
5.6
5.6
$180.59
$176.95
$990.92
Schnaufer
22.6
22.6
$180.59
$176.95
$3,999.07
Shriver
5.1
1.7
$40.00
$40.00
$68.00
$40.00
$40.00
$40.00
Costs
Totals
D.
47.5
44.1
$7,610.69
To Whom the EAJA Award Should Be Made Payable
Plaintiff indicated in his initial EAJA application that he assigned his right to be
paid to his attorney pursuant to a fee agreement. The Commissioner responded that,
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pursuant to Astrue v. Ratliff, 130 S. Ct. 2521, 177 L. Ed. 2d 91 (2010), any EAJA award
should be made payable to Plaintiff and not his attorney so that any pre-existing debt
owed by Plaintiff to the government may be subject to administrative off-set. The
Commissioner continued that, “[i]f this Court awards fees under . . . EAJA, the
government will evaluate the propriety of directing payment to the attorney pursuant to
an assignment.” (Def.’s Response 7.) Plaintiff concurred with the Commissioner in his
reply. Accordingly, counsel first shall determine whether Plaintiff owes a pre-existing
debt subject to offset; if there is no pre-existing debt or the debt is less than the amount
of the EAJA fee award, the balance of the EAJA fee award shall be made payable to
Plaintiff’s counsel per the assignment in the record.
VI.
CONCLUSION
For the foregoing reasons, Plaintiff is awarded a total of $7,610.69 to fully satisfy
all reasonable attorney’s fees, expenses, and costs incurred under EAJA.
s/ Nancy A. Vecchiarelli
U.S. Magistrate Judge
Date: July 16, 2012
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