Opinion
4:01CV3066
August 2, 2002
MEMORANDUM AND ORDER ON APPLICATION FOR FEES
This matter is now before me on an application for fees pursuant to the Equal Access to Justice Act (hereinafter EAJA), 28 U.S.C. § 2412, filing 20. On August 26, 1997, the plaintiff Tracey K. Abbott protectively filed applications for disability insurance benefits and supplemental security income benefits. The claims were denied throughout the administrative process. The plaintiff then filed a complaint on April 5, 2001, seeking judicial review of the Commissioner's decision. See Compl. to Review and Set Aside Decision Under the Social Security Act (filing 1). In an opinion dated January 23, 2002, I reversed the Commissioner's decision and remanded the case for further consideration. See Mem. and Order on Review of the Final Decision of the Commissioner of Social Security (filing 18). In doing so, I concluded that (1) the ALJ's credibility finding was not supported by substantial evidence on the record as a whole, and (2) the ALJ failed to develop the record fully and fairly with respect to the plaintiff's residual functional capacity. See id. The Commissioner was therefore directed to reconsider the plaintiff's credibility and to reevaluate the plaintiff's residual functional capacity. See id. On April 22, 2002, Plaintiff's counsel filed an application for fees, with supporting evidence, seeking a total of $6,286.18. See Application for and Br. in Supp. of Relief Under the Equal Access to Justice Act Pursuant to Sentence Four Remand [hereinafter Application for Fees] (filing 20). The Commissioner challenges both the amount of time expended by plaintiff's counsel and the method by which plaintiff's counsel tracked his time. Plaintiff's counsel seeks an additional $1,257.81 for fees incurred in responding to the Commissioner's objections. See Aff. Concerning Time Keeping and Additional Hours Spent [hereinafter Aff. Concerning Time Keeping] ¶ 7 (filing 22). After considering the record before me, I find that plaintiff's counsel is entitled to fees in the amount of $7,258.62.
Analysis
The EAJA authorizes an award of "fees and other expenses" to a prevailing party in a case against the United States "unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust." 28 U.S.C. § 2412(d)(1)(A). In social security appeals such as this, the Commissioner bears the burden of showing that her decision to deny benefits was "`"justified in substance or in the main" — that is, justified to a degree that could satisfy a reasonable person.'" Herman v. Schwent, 177 F.3d 1063, 1065 (8th Cir. 1999) (quoting Pierce v. Underwood, 487 U.S. 552, 565 (1988)); see Trundle v. Bowen, 830 F.2d 807, 809 (8th Cir. 1987) ("The government bears the burden of proving that its position at both the administrative and litigation stages was substantially justified. . . ." (citation omitted)); Brouwers v. Bowen, 823 F.2d 273, 275 (8th Cir. 1987) ("The Secretary bears the burden of proving that his position was substantially justified." (citation omitted)); see also Herman, 177 F.3d at 1065 ("The [Commissioner's position must have a `reasonable basis both in law and fact.'" (quoting Pierce, 487 U.S. at 565)). In this case, the Commissioner does not challenge the plaintiff's entitlement to fees, and my own review of the record does not reveal any "special circumstances" that would render an EAJA award unjust. See 28 U.S.C. § 2412(d)(1)(A). Thus, I find that the position of the Commissioner was not substantially justified and that reasonable fees should be awarded under the EAJA.
Having concluded that an EAJA award is proper, I must now determine whether the amount sought by the plaintiff is reasonable. With respect to attorney's fees, plaintiff's counsel requests a total of $7,148.24 for 50.1 hours of work. The EAJA provides that "attorney fees shall not be awarded in excess of $125 per hour unless the court determines that an increase in the cost of living or a special factor . . . justifies a higher fee." 28 U.S.C. § 2412(d)(2)(A). The rates submitted by plaintiff's counsel vary based on monthly cost-of-living adjustments to the statutory fee limit. To support these adjustments, plaintiff's counsel submits the United States Department of Labor's Consumer Price Index, which, according to the Eighth Circuit, "constitutes `proper proof' of the increased cost of living since the EAJA's enactment and justifies an award of attorney's fees greater than [the statutory cap]." Johnson v. Sullivan, 919 F.2d 503, 504 (8th Cir. 1990 (citations omitted)); see Application for Fees at Ex. 1 (filing 20). The Commissioner has not offered any evidence suggesting that the requested hourly rates are unreasonable, unjustified, or otherwise improper. See, e.g., Johnson, 919 F.2d at 505 ("The district court should . . . consider any circumstances that would render a cost-of-living increase unjust or improper. For example, evidence that the petitioner's counsel ordinarily charges a fee no greater than [the statutory maximum] would preclude a cost-of-living increase above that amount."). My own review of the plaintiff's evidence indicates that the figures are accurate, with two minor changes. My calculations show that the hourly rate for work performed in January of 2002 should be $142.18 and the hourly rate for work performed in May of 2002 should be $144.35. With these changes, I find that the hourly rates proposed by the plaintiff are reasonable. See id. ("We hold that where, as here, an EAJA petitioner presents uncontested proof of an increase in the cost of living sufficient to justify hourly attorney's fees of more than that [the statutory maximum], enhanced fees should be awarded.").
I turn next to the itemized accounting of attorney time that plaintiff's counsel submitted in support of the fee application. According to plaintiff's counsel, he spent 41.35 hours in connection with the appeal and 8.75 additional hours responding to the Commissioner's objection to the EAJA fee request. See Application for Fees (filing 20); Aff. Concerning Time Keeping ¶ 7 (filing 22). The Commissioner challenges this former figure as "excessive considering the nature of the case, the facts of the case, and the lack of novel issues." Def.'s Resp. to Plf.'s Application for Att'y Fees Under the EAJA [hereinafter Defendant's Response] at 2. More specifically, the Commissioner contends that "[t]his was a `straightforward' Social Security disability case, which did not involve particularly difficult or complex issues." Id. The Commissioner also directs me to an unpublished decision in which the district court for the Western District of Missouri observed that "[f]or the typical appeal of a social security case, [it] rarely awards attorneys' fees which exceed $3,000." Id. (quoting Brewer v. Apfel, No. 99-0202-CV (W.D.Mo. May 17, 2000)). Finally, the Commissioner notes that except for one entry, plaintiff's counsel has billed in quarter-hour increments, a practice that has been criticized by some courts. Id. (citing Miller v. Bowen, 639 F. Supp. 832, 836 (E.D.N.C. 1986); Echols v. Nimmo, 586 F. Supp. 467, 477 (W.D.Mich. 1984); Vandervegte v. Apfel, No. 98-3030-CV-S-5-SSA (W.D.Mo. June 12, 2000)).
In response, plaintiff's counsel notes that (1) the administrative record in this case included 295 pages of medical evidence, and (2) his original brief, which was twenty-six pages long, raised six main issues. Plaintiff's counsel also contends that "the Commissioner's form answer and briefing techniques played a large role in determining the amount of time required to prepare the reply brief," which was twenty-seven pages long. Plf.'s Resp. to Objection to EAJA Recovery at 5. Plaintiff's counsel then explains his billing method as follows:
When briefing Social Security disability cases, I try to set aside large blocks of time with a high potential for being uninterrupted. In a solo practice with limited support staff, however, interruptions do occur: calls from potential clients with fast-approaching deadlines; calls from clients who need advice now rather than later; clients who appear in the office unscheduled but without transportation options to make a timely return trip convenient or even possible; and so on. Before recording EAJA time, I compute the total time in a block spent primarily on briefing that case. I then subtract the total interruption time. In the event of even small doubt about the amount of interruption time, I then subtract a further amount, rounding down to the nearest quarter hour; if the doubt is more than small, a corresponding further reduction occurs. If the result at this point is something other than a multiple of a quarter hour, I again round down, this time to the nearest quarter hour.
Aff. Concerning Time Keeping ¶ 2 (filing 22). According to plaintiff's counsel, such a practice "actually understates the time actually spent briefing this case." Id. ¶ 6. Thus, plaintiff's counsel concludes, the amount of time he expended was both fair and reasonable.
After reviewing the materials submitted in connection with the appeal, I am inclined to agree with the plaintiff. As an initial matter, I do not share the Commissioner's concern that the billing practices of plaintiff's counsel lead to overbilling, as I see no reason to doubt the explanation outlined above. Furthermore, I do not find the unpublished Brewer decision particularly persuasive. See Brewer v. Apfel, No. 99-0202-CV (W.D.Mo. May 17, 2000) ("For the typical appeal of a social security case, this Court rarely awards attorneys' fees which exceed $3,000."). Finally, I note that both the plaintiff and the Commissioner submitted lengthy briefs with numerous case citations and references to the administrative record. The administrative record itself included over 600 pages. I, too, recall spending a significant amount of time reviewing this record and the relevant authority during the course of preparing my memorandum and order. Thus, for these reasons, I am persuaded that plaintiff's counsel exercised proper billing judgment, and that the time he expended preparing the appeal was not excessive. Plaintiff's counsel will therefore be awarded $5,890.51 for attorney's fees incurred in connection with the appeal.
In her response, the Commissioner seems to classify Stockton v. Shalala, 36 F.3d 49 (8th Cir. 1994), as a "typical" social security appeal. See Defendant's Response at 2 ("This was a `straightforward' Social Security disability case, which did not involve particularly difficult or complex issues." (citing Stockton, 36 F.3d at 50)). However, as the plaintiff notes in her reply, the panel in Stockton approved $5,387.39 in attorney's fees for 46.05 hours worth of work. See Stockton, 36 F.3d at 50.
I turn next to the request for an additional fees incurred in preparing the Response to Objection to EAJA Recovery. See, e.g., Kelly v. Bowen, 862 F.2d 1333, 1334 (8th Cir. 1988) ("We think the time spent preparing the EAJA fee application should be compensable under the EAJA because it is `necessary for the preparation of the party's case.'" (quoting 28 U.S.C. § 2412(d)(2)(A)). According to plaintiff's counsel, he spent .75 hours reviewing the Commissioner's objection and reading the cases cited therein, and eight hours preparing and editing a response brief. He therefore seeks a total of $1,257.81 for 8.75 hours of work. As discussed above, the hourly rate based on a cost-of-living adjustments should be $144.35 for work performed in May of 2002, and this rate appears to be reasonable. However, it seems to me that plaintiff's counsel expended an excessive amount of time responding to the Commissioner's two-page objection. I will therefore deduct two hours and compensate plaintiff's counsel for 6.75 hours of work at $144.35 per hour.
Plaintiff's counsel also requests compensation at the hourly rate of $25 for 15.75 hours of work by his paralegal. The government has not objected to this request, and it seems to me that both the time expended and the hourly rate are reasonable. See, e.g., El Tabech v. Gunter, 869 F. Supp. 1446, 1460 (D.Neb. 1994) (calculating "a weighted effective rate for legal assistants of $39.29 per hour"); Lutheran Med. Ctr. v. Contractors, Laborers, Teamsters Eng'rs Health Welfare Plan, 814 F. Supp. 799, 805 n. 5 (D.Neb. 1993), aff'd, 25 F.3d 616 (8th Cir. 1994) (noting that "[t]he rates for the law firm's nonprofessional employees, including paralegals, librarians, and law clerks, were between $60-65 an hour"); Stockton v. Shalala, 36 F.3d 49, 50 (8th Cir. 1994) (concluding that the district court did not abuse its discretion in fixing the paralegal's rate of compensation at $30 per hour). Thus, plaintiff's counsel will be awarded $393.75 for paralegal services. IT IS ORDERED that the Application For . . . Relief Under the Equal Access to Justice Act Pursuant to Sentence Four Remand, filing 20, is granted in part.
In his application, plaintiff's counsel requests $395.75 for paralegal services. See Application for Fees at 1 (filing 20). I assume this is merely a typographical error.
IT IS FURTHER ORDERED that the plaintiff's attorney is awarded fees in the amount of $7,258.62.