United States District Court, D. Maryland
David Lee Sykes has filed a motion seeking payment of $5,
584.06 in attorney's fees pursuant to the Equal Access to
Justice Act (“EAJA”). [ECF No. 24]. In response,
the Commissioner argues that the Court should order a reduced
fee since the hours worked were, in part, clerical and
duplicative. (ECF No. 25). I have considered those filings
and Plaintiff's reply to the Commissioner's response.
(ECF No. 26). No hearing is necessary. See Loc. R.
105.6 (D. Md. 2016). For the reasons set forth below,
Plaintiff's motion for payment of attorney's fees is
GRANTED IN PART and DENIED IN PART.
the EAJA, prevailing parties in civil actions brought by or
against the United States are entitled to an award of
attorney's fees and expenses, unless the court finds the
position of the government was substantially justified or
that special circumstances make an award unjust. 28 U.S.C.
§ 2412(d)(1)(A); Crawford v. Sullivan, 935 F.2d
655, 656 (4th Cir. 1991). To receive attorney's fees, the
prevailing party must submit a fee application and an
itemized statement of fees to the court within thirty days of
final judgment. Id.
the district court determines that a plaintiff has 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.” Hyatt v.
Barnhart, 315 F.3d 239, 253 (4th Cir. 2002); (quoting
INS v. Jean, 496 U.S. 154, 161 (1990)). Counsel
“should submit evidence supporting the hours worked,
” and exercise “billing judgment” with
respect to hours worked. Hensley v. Eckerhart, 461
U.S. 424, 433-34 (1983). “Hours that are not properly
billed to one's client also are not properly
billed to one's adversary pursuant to statutory
authority.” Id. at 434 (quoting Copeland
v. Marshall, 641 F.2d 880, 891 (D.C. Cir. 1980)
(emphasis in original)). Further, 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. Hyatt,
315 F.3d at 254 (quoting Jean, 496 U.S. at 163).
case, the Commissioner does not contest the hourly rate of
$191.86, and does not contest that Plaintiff's attorneys
are entitled to receive a fee under the EAJA. The
Commissioner's contentions are (1) that Plaintiff's
counsel billed for some non-compensable clerical time and (2)
that Plaintiff's counsel billed for duplicative work.
the first issue, “‘[t]asks of a clerical nature
are not compensable as attorney's fees.'”
Gates v. Barnhart, 325 F.Supp.2d 1342, 1348 (M.D.
Fla. 2002) (quoting Mobley v. Apfel, 104 F.Supp.2d
1357, 1360 (M.D. Fla. 2000)) (denying compensation for
mailing a complaint and summons); see also Magwood v.
Astrue, 594 F.Supp.2d 557, 563 (E.D. Pa. 2009) (finding
that clerical tasks should be excluded from the total fee
under the EAJA); Chapman v. Astrue, 2:08CV00040,
2009 WL 3764009, at *1 (W.D. Va. Nov. 9, 2009) (finding
“purely clerical tasks are ordinarily a part of a law
office's overhead and should not be compensated for at
all.”). Plaintiff's counsel claimed 0.9 hours for
the entries stating, “Draft Summons, Complaint, Civil
Cover Sheet, Letter to Clerk, Proposed Summons” and
“Review Motion for Leave In Forma Pauperis, approve for
filing.” [ECF No. 24, Ex. 4]. However, in his reply
brief, Plaintiff concedes that this time is not compensable
and “cede[s] this 0.9 hours to the
[Commissioner].” [ECF No. 26]. Therefore, in light of
Plaintiff's admission, I will disallow the 0.9 hours
claimed for these entries as clerical work.
Commissioner also contends that further reduction is
appropriate for the entry stating “OCR & Live
bookmark federal court transcript (507 pages).”
Plaintiff's counsel claimed 0.5 hours of work for that
item. Although scanning and bookmarking a transcript is
clerical work, Plaintiff correctly notes that courts have
found such work compensable as paralegal time. [ECF No. 26]
(citing Allen v. Colvin, No. 1:15-cv-00130-ODE,
(N.D.Ga. Oct. 18, 2016) and Miller v. Colvin,
5:14-cv-0611-DEP, (N.D.N.Y. Sept. 23, 2015)). Accordingly, I
will permit Plaintiff to claim the 0.5 hours requested as
Plaintiff's counsel include three entries totaling 2.9
hours for the preparation, review, and submission of the EAJA
petition. [ECF No. 24, Ex. 3]. However, EAJA fee petitions
are near-identical in every case, with the exception of
dates, amounts, and attachments. Given the routine nature of
these documents, it is difficult to see how they would take
experienced counsel and their paralegals significant time to
prepare. This Court has determined that “0.5 hours is a
closer approximation of the non-clerical work that goes into
tailoring an EAJA fee petition for each case.”
Talmo v. Colvin, No. CV ELH-14-2214, 2015 WL
5897707, at *2 (D. Md. Oct. 5, 2015). Accordingly, I will
deduct 2.4 hours from the 2.9 hours claimed for the EAJA fee
Plaintiff's counsel claimed nine separate 0.1 hours
entries for “reviewing” various docket entries.
See [ECF No. 24, Ex. 4]. Given that those entries
are either boilerplate documents filed in every Social
Security appeal or paperless orders which take, at most, mere
seconds to read, billing in six minute increments for nine of
those tasks is not reasonable. Therefore, I will discount
seven of those nine entries, allowing a total of twelve
minutes of billable time for reviewing the various
boilerplate orders and other customary docket entries.
Barnett v. Colvin, No. CIV. JKB-14-2588, 2015 WL
1736796, at *3 (D. Md. Apr. 15, 2015).
the second issue, the Commissioner argues that the number of
attorneys assigned to the case was unreasonable and that
Plaintiff's counsel billed for duplicative work.
Specifically, the Commissioner notes that “one attorney
spent .5 hour[s] preliminarily reviewing the transcript and
assigning the case to a second attorney; a second attorney
then drafted the brief; and then a third attorney spent .7
hour[s] conducting a ‘Senior Attorney' review and
edit.” [ECF No. 25] (citing [ECF No. 24, Ex. 4]).
“[The Fourth Circuit has] been sensitive to the need to
avoid use of multiple counsel for task where such use is not
justified by the contributions of each attorney.”
Abusamhadaneh v. Taylor, No. 1:11CV939 JCC/TCB, 2013
WL 193778, at *22 (E.D. Va. Jan. 17, 2013). However,
“the work of more than one attorney…does not
automatically mean overstaffing has occurred.”
Id. In this case, a review of Plaintiff's
counsel's billing records does not support the
Commissioner's position that this case was overstaffed
and that Plaintiff's counsel billed for duplicative work.
Notably, each attorney assigned to this matter performed
separate, necessary litigation tasks. Although three
attorneys worked on Plaintiff's behalf, the hours they
expended to review the case record, draft Plaintiff's
dispositive motion, and revise Plaintiff's motion, were
neither unreasonable nor duplicative. To the extent that
Plaintiff's attorneys spent additional time coordinating
case tasks with one another, this time was minimal. Moreover,
this Court has held that billing a few hours of internal
review and discussion between multiple attorneys is
reasonable. Bel Air Plaza Ltd. P'ship v.
Ross Dress for Less, Inc., No. CV CCB-14-2533, 2016 WL
3440191, at *4 (D. Md. June 23, 2016). Accordingly,
Plaintiff's counsel did not bill for duplicative work.
Therefore, no additional reduction is warranted on this
the reduction of 4.0 hours, 23.2 hours of attorney time and
5.4 hours of paralegal time will be awarded. At $191.86 per
hour for an attorney, and $100.00 per hour for a paralegal,
in addition to $22.88 in reimbursement costs, Plaintiff is
entitled to an award of $5, 014.03. Despite the minor
reduction, the amount remains significantly above the
heartland of recent EAJA fee awards in cases presenting in a
similar procedural posture. See Frierson v.
Comm'r, Civil No. SAG-16-2150 (May 8, 2017)
(awarding fees in the amount of $2, 088.69); Byrd v.
Comm'r, Civil No. SAG-16-2407 (May 8, 2017)
(awarding fees in the amount of $4, 644.80); Cole v.
Comm'r, Civil No. SAG-16-1012 (May 4, 2017)
(awarding fees in the amount of $2, 156.25); Reddish v.
Comm'r, Civil No. SAG-16-1490 (May 2, 2017)
(awarding fees in the amount of $3, 801.72); Harley v.
Comm'r, Civil No. SAG-16-867 (May 2, 2017)
(awarding fees in the amount of $4, 300.00); Mosier v.
Comm'r, Civil No. SAG-16-736 (May 1, 2017)
(awarding fees in the amount of $3, 500.00). Accordingly,
Plaintiff's Motion for Attorney Fees will be GRANTED IN
PART AND DENIED IN PART. An implementing order follows.
the informal nature of this letter, it should be flagged as
Stephanie A. Gallagher United ...