Moncada v. Commissioner of Social Security
Filing
25
MEMORANDUM OPINION AND ORDER -- the Court GRANTS Plaintiff's Motion for Attorney's Fees under the Equal Access to Justice Act. See Order as more fully set out. Signed by Magistrate Judge Shon T. Erwin on 10/19/18. (mc)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
TRACY LYNN MONCADA
Plaintiff,
v.
NANCY A. BERRYHILL,
Acting Commissioner of
the Social Security
Administration
Defendant.
)
)
)
)
)
)
)
)
)
)
)
)
Case No. CIV-17-1090-STE
MEMORANDUM OPINION AND ORDER
Before the Court is Plaintiff’s Petition for Award of Attorney’s Fees Under the Equal
Access to Justice Act (EAJA). (ECF No. 22). Specifically, Plaintiff seeks an award of fees
in the amount of $6,047.90. (ECF Nos. 22 & 23). Defendant objects to the amount of fee
requested, arguing that it is unreasonable. (ECF No. 24). The Court GRANTS Plaintiff’s
Motion for fees in the amount of $5,358.40.
I.
ATTORNEY FEES AUTHORIZED UNDER EAJA—ENTITLEMENT AND
REASONABLENESS
EAJA entitles a prevailing party to recover reasonable attorney fees from the
government “‘unless the court finds that the position of the United States was
substantially justified or that special circumstances make an award unjust.’” Al–Maleki v.
Holder, 558 F.3d 1200, 1204 (10th Cir. 2009) (quoting 28 U.S.C. § 2412(d)(1)(A)).1 When
Previously, this case was remanded following the Commissioner’s unopposed Motion to Remand
Pursuant to Sentence Four of 42 U.S.C. § 405(g). (ECF Nos. 19, 20, 21). With the reversal and
remand, Ms. Moncada is considered the “prevailing party” for purposes of EAJA. See Shalala v.
Schaefer, 509 U.S. 292 (1993).
1
evaluating a claim for attorney fees under EAJA, the court must first determine the
number of hours reasonably spent by counsel for the prevailing party. Malloy v. Monahan,
73 F.3d 1012, 1017 (10th Cir. 1996). Factors considered in a reasonableness
determination include: (1) the hours that would be properly billed to one’s client in
accordance with good “billing judgment,” (2) time spent on specific tasks, and (3)
duplication of efforts. Malloy, 73 F.3d at 1017–18. In exercising good billing judgment,
“counsel for the prevailing party should make a good faith effort to exclude from a fee
request hours that are excessive, redundant, or otherwise unnecessary.” Hensley v.
Eckerhart, 461 U.S. 424, 434 (1983). The district court is obligated to exclude “hours not
‘reasonably expended’ from the calculation.” Malloy, 73 F.3d at 1018. “The party seeking
the award has the burden of persuading the court that the hours expended and the rate
sought are both reasonable.” Id.
II.
PLAINTIFF’S EXPENDITURE OF TIME AND THE COMMISSIONER’S
OBJECTION REGARDING REASONABLENESS OF REQUESTED FEE
In litigating the appeal, Plaintiff requests fees for attorney work at the hourly rate
of $197.00. (ECF No. 22, 22-1, 22-2). An award under EAJA is limited to $125.00 per
hour unless the court determines that an increase in the cost of living or another special
factor justifies a higher fee. 28 U.S.C. §2412(d)(2)(A). Ms. Moncada has requested an
upward adjustment of the statutory rate for attorney fees and has provided supporting
documentation in the form of a letter dated February 9, 2018, from the Office of the
General Counsel of the Social Security Administration. (ECF No. 22-1). This letter shows
that for 2017 and 2018, the authorized maximum hourly rate for attorney work in
Oklahoma was $197.00. (ECF No. 22-1). Thus, Ms. Moncada is entitled to an upward
2
adjustment of the hourly attorney fee consistent with the evidence provided.
Defendant has not objected to the hourly rate of $197.00. See ECF No. 24.
Therefore, based on the evidence provided and the lack of objection from Ms. Berryhill,
the Court concludes that the hourly rate is reasonable. Thus, the only remaining issue is
the amount of fee to be awarded for work performed by Plaintiff’s attorney.
Ms. Moncada’s attorney seeks recovery for 30.7 hours of work and Defendant
objects, arguing that the amount should be reduced by 7 hours, for a total compensable
amount of 23.7 hours. (ECF No. 24:3-7). Defendant’s argument for a reduction in number
of hours billed is based on a contention that Plaintiff’s strategy and arguments in his
opening brief are virtually identical to arguments which Plaintiff’s counsel has previously
argued in four other cases, two of which were filed in this Court. (ECF No. 24:3-7). Ms.
Berryhill has documented the duplicated efforts in a chart, outlining particular arguments
raised in Ms. Moncada’s Opening Brief and comparing them to arguments raised in other
cases. See ECF No. 17-1090. An independent review of the cases filed in this Court does
reflect a duplication of efforts as outlined by Ms. Berryhill. Accordingly, the Court believes
that a reduction in fees is appropriate.
III.
TOTAL AMOUNT OF RECOVERABLE FEE
Plaintiff has requested a total fee award in the amount of $6,047.90, for 30.7 hours
of attorney work performed in 2017 and 2018 at the hourly rate of $197.00. (ECF Nos.
22, 22-2). The Court finds that the hourly rate requested is reasonable, but that a 3.5
hour reduction is warranted based on the duplication of efforts in other, similar cases
before this Court. Accordingly, the Court concludes that Plaintiff is entitled to a total award
3
of attorney fees under the EAJA in the amount of $5,358.40. Said fee is payable to the
Plaintiff. See Astrue v. Ratliff, 130 S.Ct. 2521, 2524 (2010). If attorney fees are also
awarded under 42 U.S.C. § 406(b) of the Social Security Act, Plaintiff’s counsel is to refund
the smaller amount to Plaintiff. Weakley v. Bowen, 803 F.2d 575, 580 (10th Cir. 1986).
ORDER
For the foregoing reasons, the Court GRANTS Plaintiff’s Motion for Attorney’s Fees
under the Equal Access to Justice Act in the amount of $5,358.40.
ENTERED on October 19, 2018.
4
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?