Burkard v. Commissioner Social Security Administration
Filing
31
OPINION & ORDER: Granting Plaintiff's Application for Fees Pursuant to EAJA 26 . The Commissioner is Ordered to pay Burkard's attorney fees in the amount of $7,010.77. Signed on 6/3/11 by Magistrate Judge Paul Papak. (gm)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
LUCRETIA BURKARD,
Plaintiff,
CV.09-1073-PK
OPINION AND ORDER
v.
COMMISSIONER of Social
Security,
Defendant.
PAPAK, Magistrate Judge:
Plaintiff Lucretia Burkard filed this action against defendant Commissioner of Social
Security, seeking judicial review of the Commissioner's decision finding her not disabled for
purposes of entitlement to disability insurance benefits tmder the Social Security Act. On
December 7,2010, this court recommended the district court reverse the Commissioner's final
decision, remand for determination of benefits, and enter a final judgment pursuant to sentence
four of 42 U.S.C. § 405(g). (#23.) On February 7, 2011, the district court adopted this court's
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recommendation. (#24.) Now before the court is Burkard's unopposed motion (#26) for attomey
fees. For the reasons set forth below, Burkard's motion is granted, and she is awarded attomey
fees in the total amount of$7,010.77.
ANALYSIS
1.
Plaintiff's Entitlement to Award of Attorney Fees and Costs
Burkard seeks attomey fees pursuant to the Equal Access to Justice Act (EAJA). The
EAJA provides that:
a COUlt shall award to a prevailing party other than the United States fees and
other expenses, in addition to any costs awarded pursuant to subsection (a),
incurred by that patty in any civil action (other than cases sounding in t01t),
including proceedings for judicial review of agency action, brought by or against
the United States in any court having jurisdiction of that action, unless the court
finds that the position of the United States was substantially justified or that
special cil'cumstances make an award unjust.
28 U.S.C. § 2412(d)(1)(A). Moreover, the definition ofa "party" eligible to seek fees under §
2412 includes, in relevant part, "an individual whose net wOlth did not exceed $2,000,000 at the
time the civil action was filed." 28 U.S.C. § 2412(d)(2)(B)(i). Finally, a plaintiff who obtains a
remand order under sentence four of 42 U.S.c. § 405(g) must file an application for EAJA fees
within thirty days of the expiration of the time for appeal. Shalala v. Schaefer, 509 U.S. 292,
(1993). Where no "final judgment" has been formally entered following the remand order,
however, "the time to file an EAJA petition has not run." Holt v. Shalala, 35 F.3d 376, 380 (9th
Cir. 1994).
Here, it is undisputed that Burkard falls within the scope of § 2412( d). Moreover, the
record establishes that no final judgment has been formally entered and thus Burkard's
application is timely. See Yang v. Shalala, 22 F.3d 213, 216 (9th Cir. 1994) (district court's
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remand order adopting a magistrate's recommendation is not a separate document constituting an
entry of final judgment). By failing to oppose Burkard's motion, the Commissioner also tacitly
concedes that Burkard was the prevailing party and that the goverrunent's position was not
substantially justified. Burkarhd is therefore entitled under the EAJA to her attomey fees and
costs reasonably incurred in connection with this action.
II.
Attorney Fees
Courts begin their analysis of a reasonable attomey fee by calculating the "lodestar,"
which is the "number of hours expended on the litigation multiplied by a reasonable hourly rate."
Pennsylvania v. Delaware Valley Citizens' Council/or Clean Air, 478 U.S. 546, 563-564 (1986).
Here, Burkard relied on the services of attomeys Tim Wilbom and Betsy Stephens. According to
the time records submitted in support of Burkard's petition, Betsy Stephens expended 23.75
hours on Burkard's case in 2010, while Tim Wilbom expended 5.4 hours in 2009,8.85 hours in
2010, and 2.1 hours in 2011. Burkard requests that both attomeys be compensated at an hourly
rate of $174.24 for hours expended in 2009, $175.06 for hours expended in 2010, and $177 .96
for hours expended in 2011. In total, Burkard seeks an award of $7,01.78 in attomey fees.
A.
Hours Reasonably Expended
"The district court has a great deal of discretion in determining the reasonableness of the
fee." Gates v. Deukmejian, 987 F.2d 1392, 1398 (9th Cir. 1992). The fee claimant bears the
burden to demonstrate that the number of hours spent was reasonably necessary to the litigation
and that counsel made a "good faith effoli to exclude from [the] fee request hours that are
excessive, redundant or otherwise unnecessary." Hensley v. Eckerhart, 461 U.S. 424, 434
(1983); Frankil1fusic Corp. v. l\;fetro-Goldwyn-lvfayer, Inc., 886 F.2d 1545,1557 (9th Cir. 1989).
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Moreover, the fee claimant must also "submit evidence supporting the hours worked .... Where
the documentation of hours is inadequate, the district court may reduce the award accordingly."
Hensley, 461 U.S. at 433.
Here, my analysis of the time records submitted in support of Burkard's petition
establishes that the time her counsel expended in litigation was reasonable. I therefore find that
Burkard is entitled to compensation for all 40.1 0 hours expended by her attomeys in the course
of this litigation.
B.
Reasonable Rate
Pursuant to the EAJA, "attomey fees shall not be awarded in excess of$125 per hour
unless the court detennines that an increase in the cost of living or a special factor, such as the
limited availability of qualified attomeys for the proceedings involved, justifies a higher fee." 28
U.S.C. § 2412(d)(2)(A)(ii). COUlis calculate "cost-of-living increases ... by multiplying the
$125 statutory rate by the annual average consumer price index figure for all urban consumers
("CPI-U") for the years in which counsel's work was perfOlmed, and then dividing by the CPI-U
figure for March 1996, the effective date of EAJA's $ 125 statutory rate." Thangaraja v.
Gonzales, 428 FJd 870, 876-877 (9th Cir. 2005).
Here, as noted above, Burkard seeks an hourly rate of $172.24 for work perfOlmed in
2009, $175.06 for work performed in 2010, and $177.96 for work performed in 2011. Burkard
does not seek any "special factor" increase in the statutory rate cap, but she does apparently seek
adjustment based on increases in cost of living. I take judicial notice that the applicable statutory
rate cap as adjusted for increases in cost ofliving is $172.24 in 2009, and $175.06 in 2010.
Statutory Maximum Rates Under the Equal Access to Justice Act, available at
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http://www.ca9.uscourts.gov/contentiview.php?pk_id=0000000039 (last visited June 2, 2011).
The CPI-U for the Western States is 227.837 for April 2011 and 156.4 for March 1996, resulting
in $182.09 as the applicable statutory rate cap as adjusted for increases in cost of living through
April 2011, the most recent month for which data is available. Consumer Price Index Detailed
Report Tables, U.S. Department of Labor, Bureau of Labor Statistics, available at
http://www.bls.gov/cpi/tables.htm(lastvisitedJune 2,2010). Because the adjusted rate caps
either equal or exceed the rate that Burkard has requested, the requested rates are necessarily
reasonable for EAJA purposes.
C.
Calculation and Adjustment of the Lodestar Figure
The product of 5.4 hours reasonably expended by Burkard's counsel in 2009 and the
requested hourly rate of $172.24, is $930.10. The product of 32.6 hours reasonably expended by
Burkard's counsel in 2010 and the requested hourly rate of$175.06, is $5,706.96. The product of
2.1 hours reasonably expended by Burkard's counsel in 2011 and the requested hourly rate of
$177.96, is $373.72. The sum of those tlu-ee amounts is $7,010.77, which differs from Burkard's
calculations by only one cent. Thus, the lodestar calculation results in a total of$7,010.77 in
attomey fees reasonably incuned in the course ofthis litigation. I do not find that adjustment of
the lodestar figure is warranted here. I therefore award Burkard $7,010.77 in attorney fees.
III
III
III
III
III
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CONCLUSION
For the reasons set forth above, Burkard's motion (#26) is granted, and the Commissioner
is ordered to pay Burkard's attorney fees in the amount of$7,010.77.
Dated thisO'u\. day
of'~jJ All
United States Magistrate Judge
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