Mesecher v. Colvin

Filing 29

MEMORANDUM OPINION AND ORDER FOR ATTORNEY FEES UNDER THE EQUAL ACCESS TO JUSTICE ACT: For the foregoing reasons, the Court GRANTS IN PART AND DENIES IN PART the Plaintiff's Counsel's Motion for Attorney Fees under the Equal Access to Just ice Act (doc. 26 ). IT IS, THEREFORE, ORDERED that Plaintiff's motion is GRANTED IN PART. Plaintiff is awarded attorney fees pursuant to EAJA in the amount of $8,242.10, directly payable to Plaintiff. To the extent that an award of attorneys fees in excess of this amount was sought, such motion is DENIED IN PART. (Ordered by Magistrate Judge E. Scott Frost on 10/3/2017) (tln)

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
2017 OCT
FORT WORTH DIVISION
MARIANN MESECHER,
Plaintiff,

v.
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
Defendant.

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No. 4:15-CV-0859-BL

MEMORANDUM OPINION AND ORDER FOR ATTORNEY FEES
UNDER THE EQUAL ACCESS TO JUSTICE ACT

On March 15, 2017, the Court reversed the decision of the Commissioner of Social Security
and remanded this case for further administrative proceedings, pursuant to sentence four of 42 U.S. C.

§ 405(g). 1 No appeal has been taken from this judgment and the same is now final. The Court has
under consideration Plaintiffs Counsel's Motion for Attorney Fees under the Equal Access to Justice
Act ("EAJA") (doc. 26) filed on June 13, 2017. Defendant filed a timely response agreeing that
Plaintiff may be entitled to an award of fees under the EAJA and stating no objection to the reasonableness of the hours worked, but objecting to the requested hourly rate of$190.00. See Def. 's Resp.
(doc. 27). In reply, Plaintiff agrees that the Dallas-Fort Worth Consumer Price Index ("CPI") provides the appropriate basis for calculating fees and thus adjusts the fee request to $8,242.10 as
calculated under that CPl. See Pl.'s Reply (doc. 28). For the reasons that follow, the Court agrees
that Plaintiff is entitled to fees and that the Dallas-Fort Worth CPI provides the appropriate starting
point for calculating the fees. Accordingly, it grants the motion for fees only in part as set out herein.

'Based upon the parties' Consent to Proceed Before a United States Magistrate Judge (doc. 13), the United
States District Judge reassigned the case to the undersigned pursuant to 28 U.S.C. § 636(c). See Order ofTransfer (doc.
15).

Through her motion and pursuant to 28 U.S.C. § 2412, Plaintiff seeks attorney fees in the
amount of $8,303.00, representing a request for 43.7 hours at an hourly rate of $190.00. Plaintiff
provides no proof of that hourly rate with the motion. Defendant argues that the failure to provide
proof of an acceptable higher hourly rate limits the rate to $125.00. Alternatively, Defendant argues
that, if the Court finds fees warranted and is inclined to allow Plaintiff to provide proof that an
enhanced hourly rate is warranted, she submits that the proper rates are $185.96 for 2015, $188.68
for 2016, and $191.33 for 2017. Under this alternative, Defendant calculates the fee as $8,242.10,
based upon 2.5 hours in 2015,39.7 hours in 2016, and 1.5 hours in 2017. In reply, Plaintiff agrees
with those rates and explains that the oversight in using the wrong rate could have been avoided had
Defendant conferred about the motion.
"An award of attorney's fees rests within the sound discretion ofthe trial court." Abrams v.

Baylor Col!. ofMe d., 805 F .2d 528, 535 (5th Cir. 1986). Under the EAJA, a party in a civil action
brought by or against the United States is entitled to recover attorney fees from the United States if
four requirements are met: (1) the party is a prevailing party, (2) the party timely files a fee
application, (3) the Court finds the position of the government was not substantially justified, and
(4) no special circumstances make an award unjust. 28 U.S.C. § 2412(d)(1)(A)-(B). Having carefully considered the record, the Court finds that Plaintiff is a prevailing party and timely filed the fee
application. It also finds that the Commissioner's position was not substantially justified and no
special circumstances make it unjust to award fees. Plaintiff has shown that she is entitled to an
award for attorney fees and Defendant does not significantly dispute this issue.
The EAJA further provides that attorney's fees "shall be based upon prevailing market rates
for the kind and quality of the services furnished," but "shall not be awarded in excess of$125 per

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hour unless the court determines that an increase in the cost ofliving or a special factor, such as the
limited availability of qualified attorneys for the proceedings involved, justifies a higher fee." !d.

§ 2412(d)(2)(A)(ii). The Supreme Court has recognized that any adjustment made under the EAJA
as the result of an increase in the cost of living is made to the statutory cap and when reviewing the
special factors provision, the Court considered the statutory "cap (adjusted for inflation)" separately
from that provision. See Pierce v. Underwood, 487 U.S. 552, 571-74 (1988). The Fifth Circuit has
likewise held that an adjustment for inflation is appropriately applied to the rate of the statutory cap.

Hall v. Shalala, 50 F .3d 367, 370 (5th Cir. 1995). Thus, upon the receipt of proper proof of an increase in the cost ofliving, the courts should make an appropriate adjustment to the statutory cap and
this adjusted cap "cannot be exceeded absent a finding of other special factors not specifically
delineated in the statute." !d.
The EAJ A does not specify any particular method or any particular data to use for computing
the increase in the cost of living. Although Plaintiff initially sought fees at a set $190.00 rate, she
modified the request to conform to the CPI for the Dallas-Fort Worth area ofTexas. That is the most
appropriate data for the computation because it is most applicable to the area in which the court is
located. !d. Use of such data promotes fee rates that are "uniform within a particular district court
division." Bates v. Colvin, No. 3:13-CV-1659-L, 2014 WL 2547060, at *4 (N.D. Tex. June 5, 2014)
(accepting recommendation of Mag. J.); accord Hall, 50 F.3d at 370 (requiring uniformity within
the New Orleans district courts); Baker v. Bowen, 839 F.2d 1075, 1084 (5th Cir. 1988) (requiring
uniformity in "fee awards in the Dallas district courts").
Plaintiff seeks an award for 4 3. 7 hours of attorney work performed. Defendant does not contest the hours sought. Under the EAJA, a typical fee applicant claims "between thirty and forty

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hours" for attorney work. Hardy v. Callahan, No. 9:96-CV-257, 1997 WL 470355, at *9 & n.10
(E.D. Tex. Aug. 11, 1997) (recommendation of Mag. J. citing sixteen supporting cases); accord

Patterson v. Apfel, 99 F. Supp. 2d 1212, 1215 & n.2 (C.D. Cal. 2000) (surveying "several dozen
cases in which attorney's fees were awarded in social security cases," concluding that 33.75 hours
"falls within the approved range," and citing numerous cases in a footnote). Another court has noted
that typical cases "generally range from twenty to forty hours." DiGennaro v. Bowen, 666 F. Supp.
426, 433 (E.D.N.Y. 1987). These typical ranges correspond with this Court's experience.
While recovery of more than forty hours may be atypical, "determination of attorney's fees
under the EAJA is based on reasonableness, not necessarily what is considered typical." Johns v.

Colvin, No. 3:13-CV-4420-BH, 2016 WL 1366267, at *4 (N.D. Tex. Apr. 6, 2016) (citing28 U.S.C.
§ 2412). Nevertheless, a case does not generally justify finding "more than forty hours" reasonable
when it involves no "particularly complex factual issues"; mostly "straightforward and understandable" medical evidence; and non-difficult legal issues that are not "matters of first impression."

Hardy, 1997 WL 470355, at *9. These factors remain pertinent to the reasonableness inquiry even
when a request for attorney compensation lies within the typical range.
The courts exercise their discretion to award attorney's fees while remaining mindful "that
the fee applicant bears the burden of documenting the appropriate hours expended and hourly rates."

Abrams, 805 F.2dat535-36 (citingHensleyv. Eckerhart, 461 U.S. 424,434-35 (1983)). In addition,
when "the documentation is inadequate," the court's discretion includes "reduc[ing] the award
accordingly." !d. The Fifth Circuit "has repeatedly warned applicants that they take their chances
that the ... court will reject or reduce fee awards if they submit vague or incomplete applications."

Tyler v. Cedar Hill Indep. Sch. Dist., 433 F. App'x 265,267 (5th Cir. 2011) (per curiam) (citation

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and internal quotation marks omitted). However, despite the warning, it remains within the discretion of the courts as to whether to permit the applicant to provide more specific or additional
information. ld.
In this case, Plaintiff provided documentation regarding hours claimed but did not provide
sufficient information regarding the proper hourly rate with her motion. Nevertheless, she agrees
that the Dallas-Fort Worth CPI provides the proper basis for determining the hourly rate. Having
reviewed the record of this case, the Court finds that the number of hours sought in the fee petition
is reasonable and well supported. Plaintiff has adequately explained why she requested more than
the typical hours. Defendant, furthermore, has asserted no disagreement with an award for 43.7
hours of attorney fees.
In addition, the Court sees no reason not to consider the information regarding the proper CPI
in calculating the appropriate fee in this case. Not only did Plaintiff provide the attorney hours
claimed but, unlike some types of cases, the appropriate hourly rate is determined by applying the
proper CPl. Use of the proper CPI results in about a $60 reduction in claimed fees. Based on the
briefing and the certificate of conference attached to the motion, it appears that additional conferring
on the motion might have resolved this issue. The certificate indicates that conference attempts were
thwarted by scheduling conflicts, the approaching filing deadline, and the lack of a complete filing
available for review. Defense counsel states in response to the motion that he informed opposing
counsel of the requirement for justification for enhanced fees broken down by year, but counsel for
Plaintiff states in reply that defense counsel preferred the filing of the motion before negotiating fee
issues. Regardless, the conference requirement is intended for parties to discuss matters before filing
a motion. While it is certainly the movant's burden to provide relevant information regarding the

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attorney fee issues, proper conferring could have saved the parties and the Court valuable time.
For the foregoing reasons, the Court GRANTS IN PART AND DENIES IN PART the
Plaintiffs Counsel's Motion for Attorney Fees under the Equal Access to Justice Act (doc. 26). It
grants the motion to the extent it finds that an award of fees is warranted and that the requested hours
are reasonable, but it denies it to the extent that Plaintiff initially sought an hourly rate that differs
from the applicable CPl. Nevertheless, the Court has used the applicable CPI to calculate the proper
hourly rates for the years of service. It thus finds that Plaintiff should be awarded attorney fees in
the amount of $8,242.10, representing 43.7 hours of attorney time at the appropriate rates in
accordance with the CPl. The Court further finds that, pursuant to Astrue v. Ratcliff, 560 U.S. 586,
593 (2010), the fee award should be made payable directly to Plaintiff.
IT IS, THEREFORE, ORDERED that Plaintiffs motion is GRANTED IN PART.

Plaintiff is awarded attorney fees pursuant to EAJA in the amount of$8,242.10, directly payable to
Plaintiff. To the extent that an award of attorneys fees in excess of this amount was sought, such
motion is DENIED IN PART.
SO ORDERED this

J I'J day of October, 2017.

E. SCOTT FROST
UNITED STATES MAGISTRATE JUDGE

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