Sullivan v. Astrue
Filing
44
Memorandum Opinion and Order re: plaintiff's 36 Motion for Attorney's Fees and Costs Pursuant to the Equal Access to Justice Act and Brief in Support. Plaintiff's motion is GRANTED in part, and Plaintiff is awarded $17.85 in costs and expenses, and $8,842.79 in attorney's fees. (Ordered by Magistrate Judge Irma Carrillo Ramirez on 11/3/2014) (mcrd)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
KAREN SUE SULLIVAN,
Plaintiff,
v.
CAROLYN W. COLVIN, ACTING
COMMISSIONER OF THE SOCIAL
SECURITY ADMINISTRATION,
Defendant.
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Civil Action No. 3:12-CV-04460-BH
Consent Case
MEMORANDUM OPINION AND ORDER
By order filed January 15, 2013, this matter was transferred for the conduct of all further
proceedings and the entry of judgment. Before the Court is the plaintiff’s Motion for Attorney’s
Fees and Costs Pursuant to the Equal Access to Justice Act and Brief in Support, filed June 28, 2014
(doc. 36). Based on the relevant filings, evidence, and applicable law, the motion is GRANTED
in part, and the plaintiff is awarded $8,842.79 in attorney’s fees, and $17.85 in costs and expenses.
I. BACKGROUND
On November 6, 2012, Karen Sue Sullivan (Plaintiff) filed a complaint seeking reversal and
remand of the Commissioner of Social Security’s (Commissioner) decision denying her claim for
disability insurance benefits and supplemental security income under Titles II and XVI of the Social
Security Act. (Doc. 1.) On March 31, 2014, the Court entered judgment, reversing and remanding
the case for further proceedings. (Doc. 34.) Plaintiff then moved for an award of attorney’s fees
under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412. (Doc. 36.) The Commissioner
does not object to the hourly rate, but does object to the number of hours claimed. (Doc. 38.)
II. ANALYSIS
Under EAJA, the Court must award attorney’s fees and expenses if (1) the claimant is the
“prevailing party”;1 (2) the Government’s position was not “substantially justified”; and (3) there
are no special circumstances that make an award unjust. Murkeldove v. Astrue, 635 F.3d 784, 790
(5th Cir.2011) (citing 28 U.S.C. § 2412(d)(1)(A)). The attorney’s fees awarded under the EAJA
must be reasonable, however. See 28 U.S.C. § 2412(b). “Because EAJA is a partial waiver of
sovereign immunity, it must be strictly construed in the government’s favor.” Tex. Food Indus.
Ass’n v. USDA, 81 F.3d 578, 580 (5th Cir. 1996) (citation omitted). “In determining the
reasonableness of such fees, [the Fifth Circuit] has adopted the 12-factor ‘lodestar’ test enunciated
in Johnson v. Georgia Highway Exp., Inc., 488 F.2d 714, 717 (5th Cir.1974).”2 It is, however, “not
necessary for a district court to examine each of the factors independently if it is apparent that the
court has arrived at a just compensation based upon appropriate standards. Sanders v. Barnhart, No.
04–10600, 2005 WL 2285403, at *2 (5th Cir. Sept. 19, 2005) (per curiam). The claimant has the
burden of demonstrating that the hours claimed were reasonably expended on the prevailing claim.
Von Clark v. Butler, 916 F.2d 255, 259 (5th Cir.1990).
1
To be the “prevailing party” for purposes of the EAJA, a social security claimant must obtain a
“sentence four” judgment reversing denial of disability benefits and requiring further proceedings before the
agency. Shalala v. Schaefer, 509 U.S. 292, 300–302 (1993); Goin v. Colvin, No. 3:12-CV-2471-B, 2013 WL
1797862, at *2 (N.D.Tex. Apr. 29, 2013).
2
The “lodestar fee” is the product of “the number of hours reasonably expended on the litigation”
multiplied “by a reasonable hourly rate.” Sandoval v. Apfel, 86 F.Supp.2d 601, 615–16 (N.D.Tex.2000)
(Fitzwater, C.J.). “The court must then determine whether the lodestar amount should be adjusted upward
or downward” using the Johnson factors. Id. These factors are: (1) the time and labor required; (2) the
novelty and difficulty of the questions; (3) the skill requisite to perform the legal services properly; (4) the
preclusion of other employment by the claimant's attorney due to acceptance of the case; (5) the customary
fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the claimant or the
circumstances; (8) the amount of recovery involved and the results obtained; (9) counsel's experience,
reputation, and ability; (10) the “undesirability” of the case; (11) the nature and length of the professional
relationship with the claimant; and (12) awards in similar cases. Johnson, 488 F.2d at 717–19. “[M]any of
these factors usually are subsumed within the initial calculation of hours reasonably expended at a reasonable
hourly rate.” Hensley v. Eckerhart, 461 U.S. 424, 434 (1983) (citation omitted). Accordingly, the court need
not examine each factor “if it is apparent that the court has arrived at a just compensation based upon
appropriate standards.” Sanders, 2005 WL 2285403, at *2 (citation omitted).
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Here, Plaintiff has requested a total of $9,115.08 in attorney’s fees based on 50.3 hours of
attorney work for litigating her appeal in federal court. (Doc. 36 at 4.) Counsel has submitted an
itemized billing statement detailing the time that was devoted to the case. (Doc. 36-1.) The
Commissioner does not dispute Plaintiff’s entitlement to attorney’s fees, the hourly rate requested,3
or the amount of costs requested, but she does object to the claimed number of attorney hours as
unreasonable. (Doc. 38 at 1-2.) She also contends that the attorney’s fee should be made payable
directly to Plaintiff, not her counsel. (Id. at 2-3.)
A.
Attorney Hours
The Commissioner contends that spending three hours on reviewing the Court’s final order
and judgment, a 25-page document of which the first 16-pages were procedural and factual history
of the case, was unreasonable. (Doc. 38 at 1-2.)
According to the Plaintiff’s itemized billing statement, she spent three hours reviewing this
Court’s order and judgment. (Doc. 36-1 at 1.) By way of comparison, Plaintiff’s counsel spent one
hour reviewing the Administrative Law Judge’s decision and other related documents prior to filing
a complaint. (Doc. 36-1 at 1.) The order and judgment discussed only one out of the four issues
Plaintiff raised on appeal. (See doc. 34.) Because the substantive portion of the order was less than
nine pages involving one issue, three hours to review the order appears excessive. The hours “not
reasonably expended” should be excluded from a fee award. Hensley v. Eckerhart, 461 U.S. 424,
434 (1983). Accordingly, one and a half hour is deducted for reviewing the order, and a total fee
3
Attorney’s fees under the EAJA are subject to a statutory maximum rate of $125 per hour. See 28
U.S.C. § 2412(d)(2)(A). However, the court may calculate fees using a higher rate based on an increase in
the cost of living or other “special factor.” Id. Here, Plaintiff argues, and the Commissioner does not dispute,
that a billing rate of $178.29 for attorney services performed in 2012, and $181.53 for services performed in
2013 and 2014, are appropriate based on a cost-of-living adjustment. (See doc. 36 at 4 & n. 1.)
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of $8,842.79 is awarded.4
B.
Receipt of Payment
The Commissioner objects to Plaintiff’s request that the fee award be made payable directly
to her counsel. (Doc. 38 at 2-3.)
The Supreme Court has held that a fee award under the EAJA must be paid directly to a
claimant who is found to be the “prevailing party” in the case, rather than to his attorney. Astrue
v. Ratliff, 560 U.S. 586, 593 (2010). Adhering to Ratliff’s express holding, courts in the Fifth Circuit
have declined to allow for payment to be made directly to counsel, even in cases where the fee
award is not subject to any offset by the government. See, e.g., Goin v. Colvin, No. 3:12-CV-2471B, 2013 WL 1797862, at *6 (N.D. Tex. Apr. 28. 2013) (“[C]onclud [ing] that the [most] prudent
course [was] to follow the express holding of Ratliff and require that EAJA fees be made payable
to [the] Plaintiff and not his counsel”; acknowledging “the potential need to amend a final judgment
should the government later learn within the relevant time frame that it is entitled to offset EAJA
fees to pay a debt [owed] to the government”); Yearout, 2011 WL 2988421, at *3 n. 2, (same); see
also Jackson v. Astrue, 705 F.3d 527, 531 & n. 11 (5th Cir.2013) (noting that in contrast to fees
4
In her motion for attorney’s fees, Plaintiff noted that if the Commissioner “oppose[s] the instant
Motion, additional attorney services will be required to prosecute this Motion[,]” and requested fees “for the
hours of services rendered thus far, as well as for any supplementary time reasonable required to successfully
litigate this Motion.” (Doc. 36 at 2.) Under the EAJA, fees incurred in litigating a fee application are
compensable. Sandoval, 86 F.Supp.2d at 616 (citing Powell v. Commissioner, 891 F.2d 1167, 1170–71 (5th
Cir.1990) (awarding plaintiff 28.25 hours for attorney services rendered litigating his EAJA claim); see also
Yearout v. Astrue, No. 3:10-CV-0430-L-BH, 2011 WL 2988421, at *1 n. 1 (N.D.Tex. Mar.15, 2011)
(awarding plaintiff 3.5 hours of attorney work for defending the fee application against Commissioner’s
objections) rec. adopted, 2011 WL 2990368 (N.D.Tex. July 22, 2011); Dounley v. Astrue, No.
3–08–CV–1388–O–BH, 2010 WL 637797, at *3 n. l (N.D.Tex. Feb. 23, 2010) (awarding plaintiff 5.5 hours
of attorney work for defending the fee application against Commissioner's objections). Here, the
Commissioner opposed Plaintiff’s motion, but Plaintiff did not filed a reply. As the time spent on this motion
for attorney’s fees is already included in the total fee requested, no additional fee award is required. (See doc.
36-1 at 2.)
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awarded under § 406(b) of the Social Security Act, “EAJA fees are paid to the claimant, who may
or may not tender the award to counsel”; and that “[b]ecause the government pays EAJA fees
directly to the litigant, the fees are also subject to an offset to satisfy any pre-existing debt that the
litigant [may] owe[ ] to the federal government) (citing Ratliff, 130 S.Ct. at 2524). Accordingly, the
award of attorney’s fees in this case should be made payable directly to Plaintiff and mailed to
Plaintiff’s counsel.
III. CONCLUSION
Plaintiff’s motion is GRANTED in part, and Plaintiff is awarded $17.85 in costs and
expenses, and $8,842.79 in attorney’s fees as follows:
(1) 4.9 hours of attorney work for litigating Plaintiff’s appeal in 2012 at an hourly rate of
$178.29 ($873.62);
(2) 41.4 hours of attorney work for litigating the appeal in 2013 and 2014 at an hourly rate
of $181.53 ($7,515.34); and
(3) 2.5 hours for defending Plaintiff’s EAJA attorney’s fees application in 2014 at an hourly
rate of $181.53 ($453.83).
The award of attorney’s fees in this case should be made payable directly to Plaintiff and
mailed to Plaintiff’s counsel.
SO ORDERED on this 3rd day of November, 2014.
___________________________________
IRMA CARRILLO RAMIREZ
UNITED STATES MAGISTRATE JUDGE
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