Radcliffe v. Commissioner of Social Security
Filing
37
MEMORANDUM OPINION AND ORDER SUSTAINING IN PART AND OVERRULING IN PART THE PLAINTIFF'S OBJECTIONS TO THE MAGISTRATE'S ORDER DENYING IN PART THE MOTION FOR ATTORNEY'S FEES: It is ORDERED that the Court OVERRULES IN PART and SUSTAINS IN PART Plaintiff's 35 Objections to the R&R and AWARDS an attorney's fee in the amount of $5,301.66, payable to Plaintiff. Signed by District Judge Irene M. Keeley on 4/7/16. (cnd) Modified relationship on 4/7/2016 (cnd).
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
DOUGLAS EDWARD RADCLIFFE,
Plaintiff,
v.
CIVIL ACTION NO. 1:12CV179
(Judge Keeley)
COMMISSIONER OF SOCIAL SECURITY.
Defendant.
MEMORANDUM OPINION AND ORDER SUSTAINING IN PART AND OVERRULING IN
PART THE PLAINTIFF’S OBJECTIONS [DKT. NO. 35] TO THE MAGISTRATE’S
ORDER DENYING IN PART THE MOTION FOR ATTORNEY’S FEES
The
plaintiff,
Douglas
Edward
Radcliffe
(“Radcliffe”),
objects (Dkt. No. 35) to the magistrate judge’s order (Dkt. No. 34)
granting in part and denying in part his motion for attorney’s fees
pursuant to the Equal Access to Justice Act (“EAJA”), 28 U.S.C. §
2412(d).
For the reasons that follow, the Court SUSTAINS IN PART
and OVERRULES IN PART Radcliffe’s objections and AWARDS attorney’s
fees in the amount of $5,301.66.
BACKGROUND
On December 18, 2012, Radcliffe filed his complaint seeking
review of an adverse decision of the defendant, the Commissioner of
Social Security (“the Commissioner”) (Dkt. No. 1), based on the
Commissioner’s
security
denial
income
and
of
Radcliffe’s
disability
claim
insurance
for
supplemental
benefits,
leading
Radcliffe to invoke this Court’s jurisdiction under 42 U.S.C. §
RADCLIFFE V. COMMISSIONER OF SOCIAL SECURITY
1:12CV179
MEMORANDUM OPINION AND ORDER SUSTAINING IN PART AND OVERRULING IN
PART THE PLAINTIFF’S OBJECTIONS [DKT. NO. 35] TO THE MAGISTRATE’S
ORDER DENYING IN PART THE MOTION FOR ATTORNEY’S FEES
405(g) and 42 U.S.C. § 1383(c)(3).
After the parties submitted
competing motions for summary judgment, the Honorable James E.
Seibert, United States Magistrate Judge, issued a report and
recommendation
(“R&R”),
recommending
that
the
Court
deny
Radcliffe’s application to proceed in forma pauperis and dismiss
his complaint without prejudice (Dkt. No. 19). In the alternative,
the R&R recommended that the Court deny both motions for summary
judgment and remand the case to the administrative law judge
pursuant to sentence six of 42 U.S.C. § 405.
Id.
After considering Radcliffe’s objections, the Court adopted in
part and rejected in part the R&R, denying both parties’ motions
for summary judgment and remanding the case to the Commissioner
(Dkt. No. 22).
It also rejected the recommendation to deny
Radcliffe’s application to proceed in forma pauperis and to dismiss
his complaint.
Id.
On remand, the Commissioner issued a decision
that was fully favorable to Radcliffe.
In accord with that
decision, this Court entered final judgment on June 29, 2015 (Dkt.
No. 26).
On
September
4,
2015,
Radcliffe
filed
a
motion
seeking
$7,240.86 in attorney’s fees under the EAJA, payable to his
attorney (Dkt. No. 27).
The Commissioner opposed the motion,
2
RADCLIFFE V. COMMISSIONER OF SOCIAL SECURITY
1:12CV179
MEMORANDUM OPINION AND ORDER SUSTAINING IN PART AND OVERRULING IN
PART THE PLAINTIFF’S OBJECTIONS [DKT. NO. 35] TO THE MAGISTRATE’S
ORDER DENYING IN PART THE MOTION FOR ATTORNEY’S FEES
contending that (1) its position had been substantially justified,
and (2) even if Radcliffe were entitled to fees, those fees should
be reduced and made payable directly to him, not his attorney (Dkt.
No. 30).
Magistrate Judge Seibert held an evidentiary hearing on
September 23, 2015, before deciding whether Radcliffe was entitled
to attorney’s fees under the EAJA (Dkt. No. 34).
Consequently, he
found that Radcliffe was entitled to such an award, but reduced the
amount requested, $7,240.86, to $2,500.00, the common fee in social
security cases in this District.
Radcliffe
objected
to
Id.
Magistrate
Judge
Seibert’s
order,
arguing that it was legal error to use a common fee method to
determine an award of attorney’s fees under the EAJA (Dkt. No. 35
at 1).
He argues that he should receive compensation for the
administrative proceedings following the sentence six remand,
which, he contends, by its nature involves higher attorney’s fees.
Id. at 3.
The Commissioner responded to Radcliffe’s objections,
urging the Court to exercise its “wide discretion” to award a lower
attorney’s fee award to Radcliffe (Dkt. No. 36).
3
RADCLIFFE V. COMMISSIONER OF SOCIAL SECURITY
1:12CV179
MEMORANDUM OPINION AND ORDER SUSTAINING IN PART AND OVERRULING IN
PART THE PLAINTIFF’S OBJECTIONS [DKT. NO. 35] TO THE MAGISTRATE’S
ORDER DENYING IN PART THE MOTION FOR ATTORNEY’S FEES
LEGAL STANDARD
The EAJA provides that the Court may award a reasonable
attorney’s fee and expenses to the prevailing party in any civil
action brought against the United States, including proceedings for
judicial review of agency action.
28 U.S.C. § 2412(d)(1)(A).
Within 30 days of final judgment, the prevailing party must submit
an application for fees to the Court, including an itemized
statement containing the actual time expended and the fee rate. 28
U.S.C. § 2412(d)(1)(B).
To be entitled to fees, the prevailing
party must establish that the position of the United States “was
not substantially justified,” which is determined on the basis of
the record.
Id.
The Court may exercise its “substantial discretion” to fix the
amount of an award so long as the final award is reasonable.
Hyatt
v. Barnhart, 315 F.3d 239, 254 (4th Cir. 2002) (citing INS v. Jean,
496 U.S. 154, 163 (1990)).
establishing
entitlement
The plaintiff “bears the burden of
to
appropriate hours expended.”
an
award
and
documenting
the
Id. at 253 (quoting Hensley v.
Eckerhart, 461 U.S. 424, 437 (1983) (internal quotation marks
omitted)).
The prevailing party’s attorney should be compensated
4
RADCLIFFE V. COMMISSIONER OF SOCIAL SECURITY
1:12CV179
MEMORANDUM OPINION AND ORDER SUSTAINING IN PART AND OVERRULING IN
PART THE PLAINTIFF’S OBJECTIONS [DKT. NO. 35] TO THE MAGISTRATE’S
ORDER DENYING IN PART THE MOTION FOR ATTORNEY’S FEES
for all time reasonably expended on a matter, but the EAJA should
not produce a windfall for the attorney.
Hensley,
451
U.S.
at
430,
n.
4)
Id. at 254 (quoting
(internal
quotation
marks
omitted)).
“The fact that the statute awards to the prevailing party fees
in
which
[his]
attorney
may
have
a
beneficial
interest
or
contractual right does not establish that the statute ‘awards’ the
fees directly to the attorney.”
594 (2010).
Astrue v. Ratliff, 560 U.S. 586,
Rather, any fee award “is payable to the litigant and
is therefore subject to a Government offset to satisfy a preexisting debt that the litigant owes the United States.”
Id. at
589.
ANALYSIS
Magistrate
Judge
Seibert
determined
that
Radcliffe
was
entitled to an award of an attorney’s fee because (1) he was the
prevailing
party,
(2)
the
Commissioner’s
position
was
not
substantially justified, (3) no special circumstances existed that
would make an award unjust, and (4) he submitted a fee application
supported by an itemized statement within 30 days of final judgment
(Dkt. No. 34 at 3, 8).
The parties did not object to these
5
RADCLIFFE V. COMMISSIONER OF SOCIAL SECURITY
1:12CV179
MEMORANDUM OPINION AND ORDER SUSTAINING IN PART AND OVERRULING IN
PART THE PLAINTIFF’S OBJECTIONS [DKT. NO. 35] TO THE MAGISTRATE’S
ORDER DENYING IN PART THE MOTION FOR ATTORNEY’S FEES
conclusions (Dkt. Nos. 35, 36).
Rather, Radcliffe contends that
Magistrate Judge Seibert erred by reducing his award from $7,240.86
to $2,500.00, using a common fee method (Dkt. No. 34 at 9).
As an initial matter, it is within the Court’s discretion to
apply a reasonable percentage reduction “as a practical means of
trimming fat from a fee application.”
Hogan v. Astrue, 539 F.
Supp. 2d 680, 683 (W.D.N.Y. 2008) (quoting Kirsch v. Fleet Street,
Ltd., 148 F.3d 149, 173 (2d Cir. 1998) (internal quotation marks
omitted)).
The authority cited by Radcliffe does not compel a
contrary conclusion (Dkt. No. 35 at 2-3). See Pierce v. Underwood,
487
U.S.
552,
571-73
customary
fees
is
(1988)
(finding
inappropriate
under
that
the
consideration
“special
of
factors”
analysis to determine whether reimbursement over the statutory cap
is appropriate).
Nonetheless, $2,500.00 is not a reasonable
attorney’s fee in this case.
The Court finds persuasive Radcliffe’s argument that this
case, which involved a remand pursuant to sentence six, required
more work than the average social security case, thereby warranting
a
higher
attorney’s
fee.
Radcliffe is entitled to the
It
is
unconvinced,
however,
requested amount of $7,240.86.
6
that
RADCLIFFE V. COMMISSIONER OF SOCIAL SECURITY
1:12CV179
MEMORANDUM OPINION AND ORDER SUSTAINING IN PART AND OVERRULING IN
PART THE PLAINTIFF’S OBJECTIONS [DKT. NO. 35] TO THE MAGISTRATE’S
ORDER DENYING IN PART THE MOTION FOR ATTORNEY’S FEES
Radcliffe adjusted the $125 statutory cap in § 2412 for cost
of living increases, tying the cost of living to the Consumer Price
Index (Dkt. No. 28-1 at 4-7).
The EAJA permits, but does not
require, the Court to grant a reasonable cost of living increase.
See 28 U.S.C. § 2412(d)(1)(D)(2)(A)(providing for a $125 per hour
cap on attorney’s fees “unless the court determines that an
increase in the cost of living . . . justifies a higher fee.”).
It
is the practice in this District to allow reasonable cost of living
increases.
7272798,
at
See, e.g., Sutphin v. Colvin, No. 5:13CV161, 2014 WL
*5
(N.D.W.
Va.
Dec.
18,
2014)
(Seibert,
M.J.)
(recognizing the necessity of a cost of living increase to $187.50
per hour); Johns v. Astrue, No. 5:09CV17, 2009 WL 2761925, at *1
(N.D.W. Va. Aug. 28, 2009) (Stamp, J.) (permitting a cost of living
increase to $171.71 per hour).
In 2012, Radcliffe billed a total of 2.10 hours, with 1.5
hours allocated to preparing the complaint, in forma pauperis
application, and summons, and .40 of an hour allocated to filing
the documents (Dkt. No. 28-1 at 1).
spent
reviewing
application.
the
Id.
order
The
The final .20 of an hour was
regarding
Court
finds
the
this
in
forma
amount
of
pauperis
time
on
essentially clerical tasks to be excessive, and reduces the award
7
RADCLIFFE V. COMMISSIONER OF SOCIAL SECURITY
1:12CV179
MEMORANDUM OPINION AND ORDER SUSTAINING IN PART AND OVERRULING IN
PART THE PLAINTIFF’S OBJECTIONS [DKT. NO. 35] TO THE MAGISTRATE’S
ORDER DENYING IN PART THE MOTION FOR ATTORNEY’S FEES
to .5 of an hour at a rate of $183.11, for a total of $91.56 for
2012.
In 2013, Radcliffe billed 20.30 hours, which includes .10 of
an hour reviewing the summons, .40 of an hour reviewing the
Commissioner’s answer, .10 of an hour reviewing the Commissioner’s
motion
for
excess
pages,
.30
of
an
hour
reviewing
the
Commissioner’s motion for summary judgment, and .4 of an hour
reviewing the R&R.
Id.
The Court finds that the total amount of
time spent briefly reviewing documents, 1.3 hours in total, is
excessive, and reduces the award of attorney’s fees to .5 of an
hour for those activities.
Radcliffe’s attorney also spent 4.8 hours in 2013 preparing
and filing objections to the R&R.
Id. at 1-2.
It is clear from a
review of the record, however, that Radcliffe’s objections were
only necessary because he had failed to properly file an in forma
pauperis application.
See Dkt. No. 22 at 13 (declining to dismiss
the complaint based on the application, but noting that the
magistrate
judge
could
“address
any
ongoing
doubts
about
Radcliffe’s candor regarding the legitimacy of his qualifications
for in forma pauperis status should [he] later attempt to recover
his attorney’s fees in this matter.”).
8
The Court therefore
RADCLIFFE V. COMMISSIONER OF SOCIAL SECURITY
1:12CV179
MEMORANDUM OPINION AND ORDER SUSTAINING IN PART AND OVERRULING IN
PART THE PLAINTIFF’S OBJECTIONS [DKT. NO. 35] TO THE MAGISTRATE’S
ORDER DENYING IN PART THE MOTION FOR ATTORNEY’S FEES
declines to award attorney’s fees for the 4.8 hours spent preparing
and filing objections.
For 2013, the Court awards Radcliffe 14.7
hours, at a rate of $185.96 an hour, for a total of $2,733.61.
In 2014, Radcliffe billed a total of 14.70 hours.
Of those
hours, the Court reduces the amount of time spent reviewing the
final order, various notices, the exhibit list and exhibits,
medical records, and the notice of hearing from a total of 2.2
hours to .5 hours.
It declines to award attorney’s fees for time
spent essentially on clerical tasks, including faxing papers (.1 of
an hour) and requesting medical records (1 hour).
See id. at 2-3.
Radcliffe is therefore entitled to 11.9 hours at a billing rate of
$189.10 per hour, for a total of $2,250.29.
In 2015, Radcliffe billed a total of 1.6 hours, with .40 of an
hour spent e-mailing back and forth between administrative counsel
and counsel in the instant case.
Id. at 3.
The Court agrees with
the Commissioner that this time should not be compensable, and
awards 1.2 hours at the rate of $188.50 for a total award of
$226.20.
Radcliffe’s reasonable attorney’s fees are calculated as
follows:
9
RADCLIFFE V. COMMISSIONER OF SOCIAL SECURITY
1:12CV179
MEMORANDUM OPINION AND ORDER SUSTAINING IN PART AND OVERRULING IN
PART THE PLAINTIFF’S OBJECTIONS [DKT. NO. 35] TO THE MAGISTRATE’S
ORDER DENYING IN PART THE MOTION FOR ATTORNEY’S FEES
Year
Hours
Rate
Total Amount
2012
.5
$183.11
$91.56
2013
14.7
$185.96
$2,733.61
2014
11.9
$189.10
$2,250.29
2015
1.2
$188.50
$226.20
Total
28.3
$5,301.66
The Court therefore OVERRULES IN PART and SUSTAINS IN PART
Radcliffe’s objections to the R&R and AWARDS an attorney’s fee in
the
amount
of
$5,301.66,
payable
to
Radcliffe,
and
not
his
attorney. See 28 U.S.C. § 2412(d)(1)(A); Ratliff, 560 U.S. at 59293; Johns, 2009 WL 2761925, at *2.
It is so ORDERED.
The Court DIRECTS the Clerk to transmit copies of this Order
to counsel of record.
DATED:
April 7, 2016.
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE
10
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