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Smith v. Colvin

United States District Court, D. South Carolina, Anderson/Greenwood Division

February 11, 2016

Sarah Smith, Plaintiff,
Carolyn W. Colvin, Commissioner of Social Security, Defendant.


Jacquelyn D. Austin United States Magistrate Judge

This matter is before the Court on Plaintiff’s motion for attorney’s fees and costs pursuant to the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d) for the successful representation of Plaintiff by Sarah Smith in the underlying Social Security benefits action.[1] [Doc. 30.] The Commissioner of Social Security (“the Commissioner”) filed a response in opposition to the motion on August 5, 2015 [Doc. 31]; and Plaintiff filed a reply on August 24, 2015 [Doc. 32]. Accordingly, the motion is now ripe for review.


The EAJA provides:

Except as otherwise specifically provided by statute, a court shall award to a prevailing party other than the United States fees and other expenses . . ., incurred by that party in any civil action . . . brought by or 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); see also Crawford v. Sullivan, 935 F.2d 655, 656 (4th Cir. 1991) (stating that the eligibility requirements for an award of fees under the EAJA are: (1) that the claimant is a prevailing party; (2) that the government’s position was not substantially justified; (3) that no special circumstances make an award unjust; and (4) that the claimant timely filed his petition supported by an itemized statement.)

A claimant is a prevailing party if the case is remanded pursuant to sentence four of 42 U.S.C. § 405(g). Shalala v. Schaefer, 509 U.S. 292, 301-02 (1993). Further, a fee petition is timely if filed within thirty days of the final judgment. 28 U.S.C. § 2412(d)(1)(B). Finally, the government’s position is “substantially justified” if it “ha[s] a reasonable basis both in law and in fact.Pierce v. Underwood, 487 U.S. 552, 563 (1988). The phrase “substantially justified” has not been defined as “justified to a high degree, ” but a position has been described as “substantially justified” if there is a “genuine dispute” or “if reasonable people could differ as to [the appropriateness of the contested action].” Id. at 565 (alteration in original) (internal citations and quotation marks omitted).

Under § 2412(d)(2)(A), fees and other expenses that may be awarded to a prevailing party in a civil action against the government must be “reasonable.” The statute also provides a maximum hourly rate that can be awarded. Specifically, Congress provided that the amount of fees awarded shall be based upon prevailing market rates for the kind and quality of the services furnished, except that attorney’s 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, such as the limited availability of qualified attorneys for the proceedings involved, justifies a higher fee. 28 U.S.C. § 2412(d)(2)(A)(ii); Hyatt v. Barnhart, 315 F.3d 239 (4th Cir. 2002).

In an EAJA award, the Commissioner is charged only those fees and expenses fairly attributable to the monitoring and investigatory activities that led to the discovery of the dispute and to the litigation of that dispute. Hyatt, 315 F.3d at 256. “Costs” are limited to filing fees, copying, and printing charges. 28 U.S.C. § 1920; see also 28 U.S.C. § 2412(a)(1) (specifying that costs are limited to those enumerated in 28 U.S.C. § 1920); W.Va. Univ. Hosps. v. Casey, 499 U.S. 83, 86-87 (1991) (noting that only those items specifically listed in 28 U.S.C. § 1920 are compensable as costs). Other items, such as postage, attorney travel, and telephone charges, are considered “expenses” under the EAJA. See 28 U.S.C. § 2412(d)(1)(A); see also Int’l Woodworkers of Am. v. Donovan, 792 F.2d 762, 767 (9th Cir. 1985) (upholding award of expenses for telephone charges, postage, air courier charges, and attorney travel and noting that such expenses are those normally billed to a client and are routine under most fee statutes).


Plaintiff contends that between August 4, 2014 and August 15, 2014, Paralegal Deborah H. Dempsey (“Dempsey”) spent 34.5 hours reviewing the transcript and drafting Plaintiff’s brief in support of her appeal, filed on August 18, 2014, which consisted of 39 pages and included a summary of the medical evidence, challenges to the ALJ’s weighing of the opinions of three treating physicians, and the failure of the Appeals Council to consider new evidence. [See Doc. 30-3 at 1-2.] On October 14-15, 2014, Dempsey spent 4.25 hours reviewing the Commissioner’s brief and drafting a responsive brief consisting of 15 pages and, again, addressing the medical opinion evidence of record, the weighing of this evidence by the ALJ, and the new evidence submitted to the Appeals Council. [See id.] In addition to the time outlined above, Dempsey spent one hour drafting the EAJA fee petition brief. [Doc. 30-3 at 2.] Dempsey claims a total of 39.75 hours of time in this matter. [Id.] The fee petition also seeks an additional 1.5 hours in paralegal time for drafting the civil complaint, summons, and cover sheet; preparing services of the same; and drafting the certificate of service. [Doc. 30-2 at 2.] Plaintiff seeks to recover a total of 41.25 hours of paralegal time at an hourly rate of $91.88. [Doc. 30-6 at 11.]

Plaintiff asserts that attorney Paul McChesney (“McChesney”) spent 1.5 hours meeting with Plaintiff and reviewing her file for merit. [Doc. 30-2 at 2.] McChesney also spent 5 hours reviewing and editing the initial brief drafted by Dempsey and 4.5 hours reviewing, editing, and researching for the response brief. [Id.] McChesney spent an additional 0.50 hours reviewing the Report and Recommendation in this case, 0.50 hours reviewing the Commissioner’s objections, 0.25 hours reviewing the Final Order, and 0.50 hours reviewing the EAJA petition, for a total of 12.75 hours of time. [Doc. 30-2 at 2.] Plaintiff seeks to recover attorney time at an hourly rate of $183.75. [Doc. 30-6 at 11.]

The Commissioner challenges the “reasonableness” of Plaintiff’s requested fees by arguing that Plaintiff’s counsel’s request for 54 hours of attorney and paralegal time, of which 39.5 hours were spent researching, writing, and reviewing Plaintiff’s brief in support of her appeal, is excessive. [Doc. 31 at 3.] The Commissioner cites to a number of cases in which this court has found time spent on a Social Security brief to be excessive and have reduced the time for which Plaintiff could receive compensation. Specifically, the Commissioner cites to Caldwell ex rel. Y.B.K. v. Astrue, 518 F.Supp.2d 777 (D.S.C. 2007) and Williams v. Astrue, No. 10-4, 2012 WL 6615130, *3 (D.S.C. Dec. 19, 2012), in support of this argument. The Commissioner further argues that the issues raised in the brief were routine issues that Plaintiff’s counsel, as an experienced Social Security attorney has most likely briefed numerous times in other cases. [Doc. 31 at 3]

The Court has reviewed Plaintiff’s fee petition and finds the requested hours for Plaintiff’s initial brief are reasonable and the requested hours for Plaintiff’s response brief are unreasonable. As stated above, a determination of the reasonableness of the fees is within the discretion of this court. See 28 U.S.C. § 2412(b). These determinations must be made in the context of the specific case at bar; what is reasonable in one case may be unreasonable in another. Bunn v. Bowen, 637 F.Supp. 464, 469 (E.D. N.C. 1986). The reasonableness of the hours expended in a particular case depends upon the complexity of the case, the number of reasonable strategies pursued, and the responses necessitated by the tactics of the opponent. Id. at 470. Finally, the court must weigh the hours claimed against its own knowledge, experience, and expertise of the time required to ...

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