United States District Court, D. Maryland
TRAVIS X. CARR, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.
M. DiGirolamo, United States Magistrate Judge
matter is before the Court on Plaintiff's Amended
Petition for Fees Under the Equal Access to Justice Act (the
“EAJA”) and Section 406(b) of the Social Security
Act (ECF No. 30); Defendant's Opposition to
Plaintiff's Petition for Fees Under the EAJA and Section
406(b) of the Social Security Act, as supplemented (ECF No.
32, 34); and Plaintiff's Reply to Defendant's
Opposition to Plaintiff's Fee Requests and Response to
Defendant's Supplement (ECF No. 33, 35). For the reasons
stated below, Plaintiff's amended petition 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
amended EAJA petition and reply, Plaintiff claims that his
counsel is entitled to a discounted award of $21, 940.03 in
compensation for 148.90 hours of attorney work, for 2.10
hours of paralegal work at a rate of $154 per hour in 2015,
and for 2.83 hours of paralegal work at a rate of $157 per
hour in 2016. Defendant opposes Plaintiff's request,
arguing that the total hours claimed by Plaintiff's
counsel are excessive. Defendant contends, among other
things, that the time spent by Plaintiff's counsel
preparing a response to Defendant's motion for summary
judgment (or “reply brief”) is excessive.
Defendant maintains that the Court instead should award
attorney's fees in the amount of $7000. In reply,
Plaintiff contends that Defendant's proposal is
“absurd” and “ridiculous.”
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.'”
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 was excessive).
On the 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.
maintains that the “heartland” of recent EAJA fee
awards in this Court reflects cases involving no more than 21
expended hours. “[A] comparison of raw numbers of hours
is [not] helpful in determining whether the hours here were
‘reasonably expended, '” however.
Tchemkou v. Mukasey, 517 F.3d 506, 511 (7th Cir.
2008). “If [Defendant] could show that the cases cited
were similar to the present case with respect to volume of
the background materials, the procedural nature of the case,
and the number and complexity of the issues presented, its
argument would carry more weight. [Defendant], however, has
offered no such comparison.” Id. Rather,
Defendant contends that “rewarding an attorney for
advancing (and repeating) numerous meritless arguments in
briefing a routine-type case is inequitable.” ECF No.
32 at 6. Defendant points out that the Court remanded this
case in light of one issue raised by Plaintiff and thus
declined to address the remainder of Plaintiff's
arguments. This Court previously has found that “[t]he
number of issues raised in a case . . . is not equivalent to
the number of meritorious issues in a case” and that it
“is wary of creating an incentive to include frivolous
arguments by basing the reasonableness of time expended by an
attorney on the number of arguments raised.”
Roth, 2015 WL 567168, at *2. However,
[w]here a plaintiff has obtained excellent results, his
attorney should recover a fully compensatory fee. Normally
this will encompass all hours reasonably expended on the
litigation, and indeed in some cases of exceptional success
an enhanced award may be justified. In these circumstances
the fee award should not be reduced simply because the
plaintiff failed to prevail on every contention raised in the
lawsuit. Litigants in good faith may raise alternative legal
grounds for a desired outcome, and the court's rejection
of or failure to reach certain grounds is not a sufficient
reason for reducing a fee. The result is what matters.
Hensley v. Eckerhart, 461 U.S. 424, 435, 103 S.Ct.
1933, 1940 (1983) (citation omitted).
other hand, [c]ounsel for the prevailing party should make a
good faith effort to exclude from a fee request hours that
are excessive, redundant, or otherwise unnecessary.”
Id. at 434, 103 S.Ct. at 1939-40. The Court finds to
be excessive the 56.11 hours claimed by Plaintiff's
counsel for drafting and editing Plaintiff's
twenty-five-page reply brief, which does not “justify
such a significant time expenditure in comparison to other
aspects of the litigation.” Moreland v.
Astrue, C/A No. 4:08-3902-CMC-TER, 2010 WL 2851119, at
*4 (D.S.C. July 16, 2010). Because the time expended on
Plaintiff's reply brief is excessive in light of the
issues raised, the Court finds that a 50% reduction is
reasonable. See Williams v. Astrue, No.
0:10-CV-00004-JMC, 2012 WL 6615130, at *3 (D.S.C. Dec. 19,
2012) (reducing amount of time awarded for reviewing,
editing, and drafting reply brief by 50% because time spent
was nearly as much time spent reading transcript and writing
initial brief and because plaintiff's reply brief raised
issues from its initial brief); Reyna v. Astrue, No.
1:09-CV-00719-SMS, 2011 WL 6100609, at *8 (E.D. Cal. Dec. 6,
2011) (reducing 24.5 hours billed by plaintiff's counsel
to twelve hours for preparing thirty-seven-page reply brief
because “the reply brief is overlong and the amount of
time spent preparing it is clearly excessive and
unreasonable”); Moreland, 2010 WL 2851119, at
*4 (reducing amount awarded for preparation of reply brief by
50% because legal issues raised in reply brief were not
sufficiently complex to justify such significant time
expenditure in comparison to other aspects of litigation). In
light of Plaintiff's counsel's hourly rate of $155.52
in January and February 2016 (ECF No. 30-3 at 7), the Court
reduces Plaintiff's counsel's requested fee by
counsel further claims 2.10 hours at a rate of $154 per hour
in 2015 and 2.83 hours at a rate of $157 per hour in 2016 (a
total of $767.71 for 4.93 hours) for paralegals to proofread,
analyze, and edit Plaintiff's motions for summary
judgment and EAJA fees. Plaintiff's counsel bases these
hourly rates on a “USAO Atorney's Fees Matrix -
2015-2017” for the years 2015 and 2016, respectively.
Ex. C, ECF No. 30-4. Although “tasks of a clerical
nature are not compensable as attorney's fees, ”
Mobley v. Apfel, 104 F.Supp.2d 1357, 1360 (M.D. Fla.
2000), the EAJA's authorization “for reimbursement
of attorneys fees includes authorization for reimbursement
for work performed not only by attorneys but also by persons
doing ‘tasks traditionally performed by an attorney and
for which the attorney would customarily charge the client,
' regardless of whether a licensed attorney, paralegal,
or law clerk performed them.” Priestley v.
Astrue, 651 F.3d 410, 416 (4th Cir. 2011) (quoting
Hyatt, 315 F.3d at 255); see Richlin Sec. Serv.
Co. v. Chertoff, 553 U.S. 571, 581, 128 S.Ct. 2007, 2014
(2008) (holding that the term “attorneys fees”
includes “fees for paralegal services”). The
Court finds that these claimed hours at the claimed hourly
rates are reasonable. See Richlin Sec. Serv. Co.,
553 U.S. at 578-80, 128 S.Ct. at 2013 (holding that EAJA
allows claimants to recover fees incurred for paralegal
services based on market rates for such services, not their
cost to attorneys); Sprinkle v. Colvin, 777 F.3d
421, 427 (7th Cir. 2015). Finally, the parties agree that, by
having proceeded in forma pauperis,
Plaintiff is not entitled to $350 in costs for a filing fee.
ECF Nos. 34, 35.
the specific purpose of the EAJA is to eliminate for the
average person the financial disincentive to challenge
unreasonable governmental actions. The EAJA applies to a wide
range of awards in which the cost of litigating fee disputes
would equal or exceed the cost of litigating the merits of
the claim. . . . The Government's general interest in
protecting the federal fisc is subordinate to the specific
statutory goals of encouraging private parties to vindicate
their rights and “curbing excessive regulation and the
unreasonable exercise of Government authority.”
Comm'r, INS v. Jean, 496 U.S. 154, 163-65, 110
S.Ct. 2316, 2321-22 (1990) (footnotes and citation omitted).
In light of the circumstances of this case, the Court finds
that an award of EAJA fees in the amount of $17, 576.92 is
reasonable. However, because Plaintiff's motion for
attorney's fees under 42 U.S.C. § 406(b) must be
filed under Local Rule 109.2.c within thirty days of the date
of the Notice of Award letter sent to a claimant and his
attorney at the conclusion of the Social Security
Administration's past-due benefit calculation,
Plaintiff's request for § 406(b) fees is premature
and thus DENIED WITHOUT PREJUDICE. Thus, Plaintiff's
Amended Petition for Fees ...