Durant v. Social Security Administration
Filing
31
OPINION AND ORDER by Magistrate Judge Kimberly E. West granting 26 Motion for Attorney Fees; and granting 29 Supplemental Motion for Attorney Fees. (sjr, Chambers)
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
DIANA L. DURANT,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of Social
Security Administration,
Defendant.
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Case No. CIV-13-539-KEW
OPINION AND ORDER
This matter comes before the Court on Claimant’s Motion for
Award of Attorney Fees Pursuant to the Equal Access to Justice Act
(Docket Entry #26) and Claimant’s Supplemental Motion for Award of
Attorney Fees Pursuant to the Equal Access to Justice Act (Docket
Entry #29).
By Order and Opinion entered September 30, 2015, this
Court reversed the decision of the Commissioner to deny Claimant’s
applications for disability insurance benefits under Title II of
the Social Security Act and for supplemental security income under
Title XVI of the Social Security Act and remanded the case for
further proceedings.
In the Motion, Claimant seeks attorney’s fees for 64.40 hours
of time expended by her attorney at the stipulated fee rate for a
total request of $12,228.30 under the authority of the Equal Access
to Justice Act (“EAJA”).
However, Claimant’s attorney voluntarily
reduced his billing by 30% to a requested total of $8,559.81.
Because Claimant filed a reply to the first Motion, she filed a
supplemental fee motion seeking an additional $2,594.40 for 13.80
hours expended in preparing the reply.
In her Amended Reply,
Claimant
requested
reduces
$2,334.96.
the
supplemental
fee
by
10%
to
The Commissioner contests the award of EAJA fees,
contending that the fees requested are not reasonable.
EAJA provides that a prevailing party other than the United
States shall be awarded fees and costs unless the court finds the
position of the United States was substantially justified or that
special
circumstances
make
an
award
unjust.
28
U.S.C.
§
2412(d)(1)(A). The Commissioner does not contend that her position
in
the
review
was
substantially
justified.
Rather,
she
specifically asserts that Claimant should be limited to $7,500.00
in total fees.
She did not respond to Claimant’s request for
supplemental fees incurred in the preparation of the reply brief.
The Commissioner challenges Claimant’s request for reimbursement
for (1) .80 hours performed prior to the filing of the Complaint;
(2) .30 hours for items attributable to ministerial tasks; and (3)
a
generalized
reduction
in
the
time
expended
to
review
the
administrative record and complete the briefing.
Necessarily, time will be expended in the preparation of the
case for filing, including the drafting of the complaint and a
reasonable amount of time in developing the theory of the case.
Cameron v. Barnhart, 2002 WL 31079435, 3 (10th Cir. (Okla.)).
While the Commissioner is correct that work performed at the
administrative level is not compensable, the evaluation of the case
for the preparation of the complaint are services performed in
2
connection
with
these
judicial
proceedings
and
not
with
the
preceding administrative proceedings. As a result, fees associated
with this work are compensable. Moreover, only the verification of
the service of summons and filing of a return of service is
considered ministerial.
The remaining matters of review require a
modicum of legal evaluation by an attorney and, therefore, are
compensable. The generalized reduction for excess time expended in
the review of the record and preparation of briefing has been
encompassed by the voluntary reduction in the documented fees. The
further reduction urged by the Commissioner is not justified.
The time expended in the preparation of the reply brief,
however, is somewhat excessive given the resulting product, even
considering the voluntary 10% reduction in the fee requested.
A
review of the contemporaneous time and expense records attached to
the supplemental fee request reveals an excessive amount of time
expended in the preparation of the reply brief - especially in
light of the fact that much of this briefing is duplicated in other
cases
filed
supplemental
by
fee
this
attorney.
request
will
As
be
a
result,
reduced
by
a
the
original
total
30%
to
$1,816.08.
IT IS THEREFORE ORDERED that Claimant’s Motion for Award of
Attorney Fees Pursuant to the Equal Access to Justice Act (Docket
Entry
#26)
and
Claimant’s
Supplemental
Motion
for
Award
of
Attorney Fees Pursuant to the Equal Access to Justice Act (Docket
Entry #29) are GRANTED and that the Government be ordered to pay
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Claimant’s attorney’s fees in the total amount of $10,375.89.
In
accordance with the ruling of the Tenth Circuit Court of Appeals,
the award shall be made to Plaintiff as the prevailing party and
not directly to Plaintiff’s counsel.
Manning v. Astrue, 510 F.3d
1246, 1255 (10th Cir. 2007); 28 U.S.C. § 2412(b).
In addition,
should Plaintiff’s counsel ultimately be awarded attorney’s fees
pursuant to 42 U.S.C. § 406(b)(1), counsel shall refund the smaller
amount to Plaintiff.
Weakley v. Bowen, 803 F.2d 575, 580 (10th
Cir. 1986).
IT IS SO ORDERED this 6th day of April, 2016.
______________________________
KIMBERLY E. WEST
UNITED STATES MAGISTRATE JUDGE
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