Dunn v. Berryhill
Filing
28
Memorandum Opinion and Order granting 24 Plaintiff's Motion for Fees Under the Equal Access to Justice Act, 28 U.S.C. § 2412. (Ordered by Magistrate Judge Irma Carrillo Ramirez on 9/30/2019) (mcrd)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
STACY G. D.,
Plaintiff,
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ANDREW SAUL,
COMMISSIONER OF SOCIAL
SECURITY ADMINISTRATION,
Defendant.
Civil Action No. 3:18-CV-0204-BH
Consent Case1
MEMORANDUM OPINION AND ORDER
Before the Court for determination is Plaintiff’s Motion for Fees Under the Equal Access to
Justice Act, 28 U.S.C. § 2412, filed June 18, 2019. (doc. 24.) Based on the relevant findings,
evidence, and applicable law, the application is GRANTED, and the plaintiff is awarded $8,492.03
in attorney’s fees, expenses, and costs.
I. BACKGROUND
On January 26, 2018, Stacy G. D. (Plaintiff) filed a complaint seeking judicial review of a
final decision by the Commissioner of Social Security (Commissioner)2 that denied her claim for
disability insurance benefits under Title II of the Social Security Act. (doc. 1.)3 On March 23, 2017,
the Commissioner’s decision was reversed, and the case was remanded for further proceedings.
(docs. 20; 21.) Plaintiff subsequently moved for an award of attorney’s fees, expenses, and costs
under the Equal Access to Justice Act, 28 U.S.C. § 2412. (doc. 24.) The Commissioner does not
1
By consent of the parties and order filed December 28, 2017 (doc. 16), this case has been transferred for the
conduct of all further proceedings and the entry of judgment.
2
At the time this appeal was filed, Nancy A. Berryhill was the Acting Commissioner of the Social Security
Administration, but Andrew Saul became the Commissioner of the Social Security Administration on June 17, 2019, so
he is automatically substituted as a party under Fed. R. Civ. P. 25(d).
3
Citations to the record refer to the CM/ECF system page number at the top of each page rather than the page
numbers at the bottom of each filing.
object to the hourly rate but objects to the number of hours claimed. (doc. 26.)
II. ANALYSIS
Under the EAJA, a court must award attorney’s fees and expenses if (1) the claimant is the
“prevailing party”;4 (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).”5 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
4
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).
5
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). “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, a 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).
2
v. Butler, 916 F.2d 255, 259 (5th Cir. 1990) (noting that the burden “does not shift to the opposing
party merely because that party does not show that the hours are unreasonable or that it did not make
specific objections to the hours claimed”).
Here, as the prevailing party, Plaintiff has requested a total of $8,492.03 in attorney’s fees
and expenses for 31.61 hours of attorney work and 12.28 hours of paralegal work for litigating this
appeal in federal court, 3.62 hours of attorney work for preparing and filing the EAJA application,
$21.35 in postage expenses for service of process and case-related correspondence, and $419.90 in
costs for copies and the initial filing fee. (docs. 24-1 at 5-7; 24-2.) Counsel has submitted an
itemized billing statement detailing the time that was devoted to the case.6 (doc. 24-2.) The
Commissioner does not dispute Plaintiff’s entitlement to attorney’s fees, expenses, and costs or the
hourly rates requested,7 but objects to the number of hours. (doc. 26 at 1-2.)
A.
Attorney Hours
The Commissioner claims that 31.61 hours for litigating Plaintiff’s case in federal court is
unreasonable and requests a reduction to 25.61 hours. (doc. 26 at 4).
1.
Work Performed on Plaintiff’s Brief
The Commissioner initially objects that the total number of hours worked on the initial brief,
specifically the time entries from May 22, June 6, June 7, and June 11, 2016, is unreasonable
6
Contemporaneous billing records are acceptable documentation for determination of reasonable hours. See Bode
v. United States, 919 F.2d 1044, 1047 (5th Cir. 1990).
7
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). A court may calculate fees using a higher rate based on an increase in the cost of living or other “special
factors,” however. Id. Here, Plaintiff argues, and the Commissioner does not dispute, that a billing rate of $189.94 per
hour for attorney services performed in 2017, $195.56 per hour for attorney services performed in 2018, and $197.58 for
attorney services performed in 2019, are appropriate based on a cost-of-living adjustment. (docs. 24-1 at 6, 26 at 1-2.)
Paralegal work is also reimbursable under the EAJA, which is based on market paralegal rates. See Richlin Sec. Serv. Co.
v. Chertoff, 553 U.S. 571 (2008). Plaintiff argues, and the Commissioner does not dispute, that $95.00 per hour is the
reasonable market rate for paralegal work in the Northern District of Texas. (docs. 24-1 at 7; 26 at 1-2.)
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because the case did not include any novel legal arguments or uncommon factual issues, raised only
a single point of error, and “a great deal of its length result[ed] from Plaintiff’s counsel summarizing
various medical records, rather than a detailed analysis and synthesis of the law and facts.” (doc.
26 at 3.) He claims that 17.44 attorney hours in connection with the initial brief is unreasonable and
requests a reduction to 11.44 attorney hours. (Id. at 2.)
The billing records show that of the disputed 17.44 hours, counsel spent 6.55 hours on May
22, 2016, reviewing and annotating the transcript, summarizing the procedural and medical history
and case law for the brief, and researching the disability ratings issue–including the new social
security regulations on those ratings and recent precedent regarding the new standards. Counsel also
spent 3.82 hours on June 6, 2018, revising the case statement and comparing case facts to similar
Fifth Circuit cases, and 5 hours on June 7, 2018, drafting and revising the arguments section, making
multiple revisions for clarity, punctuation, spelling, grammar, and citation, and drafting the table of
authorities and issue-presented section. Finally, he spent 2.07 hours on June 11, 2016, reviewing
the brief, making final revisions, and filing the brief. (doc. 24-2 at 2.)
“[I]t is well established that the most critical factor in determining an award of attorney’s
fees is the degree of success obtained by the victorious plaintiff [ ].” Northwinds Abatement, Inc.
v. Empl’rs. Ins. of Wausau, 258 F.3d 345, 354 (5th Cir. 2001) (internal quotations omitted); see also
Hensley, 461 U.S. at 440 (“[T]he extent of a plaintiff’s success is a crucial factor in determining the
proper amount of an award of attorney’s fees under” the EAJA.). Plaintiff’s successful brief was
15 pages long and presented a comprehensive explanation of her physical ailments and symptoms,
and made a thorough presentation of her legal arguments on appeal. (See doc. 17.) The disputed
hours consist of 6.55 hours reviewing a record of more than 1,500 pages and summarizing the
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relevant aspects of Plaintiff’s medical history for the brief.
See Harris v. Colvin, No.
3:11-CV-1089-M-BH, 2013 WL 2896880, at *3 (N.D. Tex. June 13, 2013) (finding 6.33 hours
counsel spent “identifying important procedural information and medical facts, and condensing them
into a chronological, 9–page summary” was reasonable and did not warrant reduction); Leroux v.
Astrue, No. 3-10-CV-2634-M, 2012 WL 6757772, at *1 (N.D. Tex. Oct. 26, 2012) (finding that
15.08 hours were reasonable for counsel, who had represented the claimant at the administrative
level, to review the record, “locate substantive evidence for arguments and citations to that
evidence,” and summarize that evidence), adopted by 2013 WL 28577 (N.D. Tex. Jan. 2, 2013); see
also Campbell v. Berryhill, No. 3:15-CV-3913-N-BH, 2017 WL 4404459, at *3 (N.D. Tex. Sept.
1, 2017) (finding that 43 hours working on the initial brief was reasonable when there was an
administrative record of 1,662 pages), adopted by 2017 WL 4351370 (N.D. Tex. Sept. 29, 2017).
It also consist of 5 hours “proofreading, cite checking, and correcting” Plaintiff’s brief, including
the table of authorities, which “require[d] some legal skill and knowledge” that “could not generally
be easily or competently performed by clerical staff.” See Leroux, 2012 WL 6757772, at *5. In view
of Plaintiff’s success, the time requested to complete and revise his opening brief is reasonable. See
Northwinds, 258 F.3d at 354.
2.
Counsel’s Experience
The Commissioner also objects on the ground that Plaintiff’s counsel had been practicing
Social Security law for many years and “[t]he government is entitled to expect some additional
efficiency from experienced or able counsel.” (doc. 26 at 3-4.)
The Commissioner contends that 17.44 hours in connection with drafting the initial brief was
unreasonable, but he does not identify any specific task that should have taken less time given
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counsel’s experience. Notably, the disputed hours include, among other tasks, the time to review
and synthesize an administrative record of more than 1,500 pages. See cf. Campbell, 2017 WL
4404459, at *3 (“At 1,662 pages, the administrative record is also much longer than the record in
a typical social security appeal.”). Regardless of an attorney’s experience level, “one must
understand and interpret the claimant’s medical record, . . . [which] may consist of complex medical
terminology, medical reports, progress notes, diagnoses, and psychiatric evaluations.” Harris, 2013
WL 2896880, at *3 (quoting ValentinNegron v. Comm’r of Soc. Sec., No. CIV. 11-1860 MEL, 2012
WL 5948341, at *2 (D.P.R. Nov.28, 2012)). Understanding that counsel must be familiar with the
claimant’s medical record to effectively pursue a reversal and remand of the ALJ’s decision, courts
have held that it is reasonable for an attorney who did not represent the claimant at the
administrative level to spend time familiarizing himself with the record. See, e.g., Bentley v. Astrue,
No. 3:10-CV-00032-L BF, 2011 WL 2923970, at *2 (N.D.Tex. June 15, 2011) (finding that the
12.66 hours that counsel, who had represented the claimant before the agency, “spent reviewing and
making notes on the record” were reasonable), recommendation adopted as modified on other
grounds, 2011 WL 2938223 (N.D. Tex. July 20, 2011); McNeil v. Astrue, No. CIVA H-07-3664,
2009 WL 1451707, at *3 (S.D. Tex. May 22, 2009) (approving of 11.35 hours that counsel spent
reviewing the administrative record); Miller v. Apfel, No. CIV.A. 300-CV-0107-M, 2001 WL
1142763, at *4 (N.D.Tex. Sept.26, 2001) (declining to reduce from 24.10 to 12.5 the hours that
counsel spent “reviewing the administrative record,” with which he was “familiar” due to having
represented the claimant before the agency; finding that these hours were reasonable and
“evidence[d] proper billing judgment”). Even considering Plaintiff’s counsel’s experience in Social
Security law, based upon the detailed billing records and filed pleadings, he reasonably spent 17.44
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hours working on Plaintiff’s brief.
In sum, considering all of the work performed, the 31.61 hours requested for litigating
Plaintiff’s case in federal court are reasonable and will not be reduced. See Bentley, 2011 WL
2923970, at *2 (awarding 57.5 hours “that counsel reasonably and necessarily expended in th[e]
case”); Sweat v. Barnhart, No. 3:05-CV-0329-M, slip op. at 4 (N.D. Tex. Aug. 27, 2007) (approving
of 66.1 hours that counsel “reasonably and necessarily expended . . . on the [claimant’s] successful
appeal”).
B.
Itemization of Costs
Plaintiff additionally seeks the initial $400.00 filing fee and $19.90 in copying costs incurred
as reimbursable costs under 28 U.S.C. § 2412(a). (doc. 24-1 at 7.) The Commissioner does not
appear to object to this reimbursement request. (See doc. 26.)
The EAJA provides that “a judgment for costs . . . may be awarded to the prevailing party
in any civil action brought by or against the United States or any agency or any official of the United
States acting in his or her official capacity in any court having jurisdiction of such action.” 28 U.S.C.
§ 2412(a)(1). Certain costs, such as filing fees and fees for printing and copies, may be charged
against the government of the United States, through the Office of the United States Attorney, and
paid from the Judgment Fund by the Department of the Treasury. See 31 U.S.C. § 1304. In an
appeal of an adverse social security ruling, “[w]hether the fault is that of the Administrative Law
Judge, the Appeals Council, or the Commissioner’s lawyers in court, the fault lies with the United
States and the United States is liable for costs and fees.” Ingle v. Berryhill, No. 14-CV-413-CJP,
2017 WL 1178086, at *1 (S.D. Ill. Mar. 30, 2017) (citing 28 U.S.C. § 2412(d)(2)(C)).
Here, Plaintiff successfully brought a civil action against the Commissioner in his official
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capacity, who was represented by the U.S. Attorney’s Office. (See docs. 1, 10.) Accordingly,
Plaintiff’s reimbursement for costs should be paid from the Judgment Fund pursuant to 31 U.S.C.
§ 1304. See, e.g., Birge v. Colvin, No. 3:12-CV-1777-G-BH, 2014 WL 103665, at *1 (N.D. Tex.
Jan. 10, 2014) (ordering reimbursable filing fee costs to be paid from the Judgment Fund in an
appeal of an adverse social security ruling); Benton v. Astrue, No. 3:12-CV-0874-D, 2013 WL
818758, at *1 (N.D. Tex. Mar. 5, 2013) (same).
III. CONCLUSION
Plaintiff’s motion is GRANTED, and Plaintiff is awarded $8,492.03 in attorney’s fees,
expenses, and costs as follows:
(1)
3.67 hours of attorney work for litigating Plaintiff’s appeal in 2017 at an hourly rate
of $189.94 ($697.08);
(2)
24.02 hours of attorney work for litigating Plaintiff’s appeal in 2018 at an hourly rate
of $195.56 ($4,697.35);
(3)
3.92 hours of attorney work for litigating Plaintiff’s appeal in 2019 at an hour rate
of $197.58 ($774.51);
(4)
3.62 hours of attorney work for defending Plaintiff’s EAJA attorney’s fees
application in 2019 at an hourly rate of $197.58 ($715.24);
(5)
12.28 hours of paralegal work at an hourly rate of $95.00 ($1,166.60 );
(6)
$21.35 reimbursable costs as postage fee expenses; and
(7)
$419.90 reimbursable costs as filing and copying fee expenses from the Judgment
Fund.
.
The award of attorney’s fees, expenses, and costs in this case shall be made payable directly
to Plaintiff and mailed to Plaintiff’s counsel.8
8
The Supreme Court has held that an 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).
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SO ORDERED this 30th day of September, 2019.
___________________________________
IRMA CARRILLO RAMIREZ
UNITED STATES MAGISTRATE JUDGE
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