United States District Court, D. Maryland
CHARLES R. GANT, JR., Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.
M. DiGirolamo United States Magistrate Judge
matter is before the Court on Plaintiff's Motion for
Attorneys' Fee Under the Equal Access to Justice Act (the
“EAJA”) (ECF No. 26), Defendant's Opposition
to Plaintiff's Motion for Attorney's Fees Under the
EAJA (ECF No. 29), and Plaintiff's Reply with Amendment
to Defendant's Opposition to Plaintiff's Request for
EAJA Fees (ECF No. 30, 32). For the reasons stated below,
Plaintiff's Motion is GRANTED IN PART and DENIED IN PART.
the EAJA, a “prevailing party” in any civil
action brought by or against the United States,
“including proceedings for judicial review of agency
action, ” is entitled to recover reasonable fees and
expenses incurred in the proceeding. 28 U.S.C. §
2412(d)(1)(A). The prevailing party is not entitled to such
fees and expenses, however, if the Court finds that the
position of the United States was “substantially
justified.” Id. In this case, the parties
agree that Plaintiff is a “prevailing party”
entitled to attorney's fees under the EAJA, and the
Government does not contest that the position of the United
States was not “substantially justified.” The
parties do dispute, however, the reasonableness of the number
of hours of work claimed by Plaintiff's counsel. In his
EAJA petition, Plaintiff claimed that his counsel was
entitled to an award of $4, 833.50 in EAJA fees reflecting
37.48 attorney hours at a rate of $125 per hour and 1.98
legal assistant hours at a rate of $75 per hour. Pl.'s
Mot., ECF No. 26. Defendant opposed Plaintiff's request,
arguing that the total hours claimed by Plaintiff's
counsel for preparing his Memorandum in Support of his Motion
for Summary Judgment and Reply are excessive. Defendant
maintained that the Court instead should award attorney's
fees in the amount of $3, 750.00. In reply, Plaintiff now
agrees to a reduction in total claimed attorney hours to
34.80 hours (but at the increased attorney rate of $190 per
hour to reflect the increase in the cost of living) for a
total of $6, 612.00. Plaintiff also claims 1.98 hours for the
attorney's legal assistant to proofread and critique at
an hourly rate of $125 for a total of $247.50.
Once the district court determines that plaintiffs have met
the threshold conditions for an award of fees and costs under
the EAJA, the district court must undertake the “task
of determining what fee is reasonable.” “A
request for attorney's fees should not result in a second
major litigation. Ideally, of course, litigants will settle
the amount of a fee.” However, “[w]here
settlement is not possible, the fee applicant bears the
burden of establishing entitlement to an award and
documenting the appropriate hours expended.” Counsel
“should submit evidence supporting the hours worked,
” and exercise “‘billing
judgment'” with respect to hours worked.
“Hours that are not properly billed to one's
client also are not properly billed to one's
adversary pursuant to statutory authority.”
Hyatt v. Barnhart, 315 F.3d 239, 253-54 (4th Cir.
2002) (alteration in original) (citations omitted).
“The district court is accorded ‘substantial
discretion in fixing the amount of an EAJA award, ' but
is charged with the duty to ensure that the final award is
reasonable.” Id. at 254 (citation omitted).
“In sum, the EAJA provides that attorneys for a
prevailing party should be paid ‘for all time
reasonably expended on a matter, ' but the EAJA should
not ‘produce windfalls to attorneys.'”
Id. “Courts within this circuit have held . .
. that in typical Social Security cases it is reasonable for
an attorney to expend between twenty and forty hours.”
Roth v. Comm'r, Soc. Sec., Civil Case
No. SAG-14-62, 2015 WL 567168, at *3 (D. Md. Feb. 10, 2015)
(citing cases and determining that spending 43.16 hours to
prepare and draft plaintiff's motion for summary judgment
other hand, “courts cannot drastically reduce awards
simply because the attorney has requested compensation for
more than forty hours or make reductions with a target number
in mind.” Costa v. Comm'r of Soc. Sec.
Admin., 690 F.3d 1132, 1136 (9th Cir. 2012) (per
curiam). Rather, courts “must explain why the amount of
time requested for a particular task is too high. Any other
approach fails to give deference to the winning lawyer's
professional judgment . . . .” Id. The court
in Costa found that the magistrate judge's
reduction by nearly one-third of the hours requested by the
plaintiff's counsel was improper because the magistrate
judge merely found that the issues in the case were not novel
or complex and that the brief was not very long. Id.
at 1136-37. The magistrate judge in that case also did not
explain why the amount of time that he ultimately allotted to
the plaintiff's counsel's preparation of supplemental
and reply memoranda was reasonable. Id. at 1137.
Plaintiff's counsel claims 1.98 hours for a legal
assistant to proofread and critique the motion for summary
judgment. “[T]asks of a clerical nature are not
compensable as attorney's fees, ” however.
Mobley v. Apfel, 104 F.Supp.2d 1357, 1360 (M.D. Fla.
2000). The Court thus disallows 1.98 legal assistant hours
from the time for the preparation of Plaintiff's motion
for summary judgment. See Mitchell v. Comm'r, Soc.
Sec., No. DKC-16-359, 2016 WL 6802834, at *2 (D. Md.
Nov. 17, 2016) (disallowing 1.91 hours spent by legal
assistant to proofread and critique fee petition and motion
for summary judgment, as “the Commissioner should not
pay for a legal assistant to review and critique these
documents, written by counsel, before filing”).
light of the circumstances of this case, the Court thus finds
that an award of fees in the amount of $6, 612.00 for 34.80
hours at the requested hourly rate of $190 is reasonable.
Plaintiff's Motion for Attorneys' Fee Under the Equal
Access to Justice Act (ECF ...