United States District Court, D. Maryland
DAVID L. SPENCER, Claimant,
NANCY A. BERRYHILL, Deputy Commissioner of Social Security,  Defendant.
REPORT AND RECOMMENDATIONS
Stephanie A. Gallagher United States Magistrate Judge.
L. Spencer filed a motion for attorney's fees pursuant to
the Equal Access to Justice Act (“EAJA”), 28
U.S.C. § 2412, in the amount of $6, 270.00, plus costs
in the amount of $500.00. [ECF No. 17]. Subsequently, the
parties agreed on a reduction of the fee request to $5,
000.00, plus $400.00 in costs. [ECF No. 19]. Because Mr.
Spencer did not consent to a magistrate judge for all
proceedings, his request for attorney's fees has been
referred to me, pursuant to Standing Order 2014-01, for
review and to make recommendations under 28 U.S.C. §
636(b)(1)(B) and Local Rule 301.5(b)(ix). For the reasons set
forth below, I recommend that the agreed amount of
attorney's fees and costs be GRANTED.
Spencer filed an application for Disability Insurance
Benefits. [ECF No. 1]. Subsequent to a denial of benefits
through the administrative appeals process, on April 20,
2017, Mr. Spencer petitioned this Court to review the Social
Security Administration's (“SSA's”)
decision to deny his claim. Id. After Mr. Spencer
filed a motion for summary judgment, (ECF No. 14), the SSA
submitted a consent motion to remand Mr. Spencer's claims
to the Agency under sentence four of 42 U.S.C. § 405(g),
(ECF No. 15). United States District Judge Catherine C. Blake
granted the consent remand on December 22, 2017. [ECF No.
March 22, 2018, Mr. Spencer timely filed the instant motion
for attorney's fees under the EAJA. (ECF No. 17). His
attorney, David F. Chermol, Esq., who appears in this court
pro hac vice, has submitted an itemized billing
statement suggesting that he is entitled to $6, 270.00 for
33.0 hours of work at an EAJA rate of $190.00 per hour.
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, which is defined as commencing after the time
for appeal has run. 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)).
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, Mr. Chermol's bill includes some minimal time
billed for administrative tasks, such as setting
“tickles” and checking on filings and service.
[ECF 17-1 at 2-3]. Those items are not properly billed.
See, e.g., Al Daniel v. Colvin, Civil No.
SAG-11-1318, 2015 WL 1125542 (D. Md. Mar. 11, 2015)
(eliminating 4.3 hours from the bill for administrative tasks
performed); Emory v. Colvin, Civil No. SAG-11-381,
2014 WL 4388287 (D. Md. Sept. 4, 2014) (noting that the bill
contained 3.8 hours of largely administrative tasks);
King v. Colvin, Civil No. SAG-08-2382, 2014 WL
4388381 (D. Md. Sept. 4, 2014) (noting that bill included 4.2
hours of time simply for receiving and reviewing consent
motions for extension of time, and another significant amount
of clerical work). “Tasks 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 attorney 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”).
However, the parties' agreed reduction in the amount
billed to $5, 000.00 adequately compensates for the
improperly billed entries. With those adjustments, and with a
voluntary reduction from 41.7 to 33.0 hours, the amount of
time spent on the matter is commensurate with time spent by
other counsel in cases in a similar procedural posture, and
the rate is also appropriate. The reduced amount of costs
sought will compensate Mr. Spencer for his filing fee, but
not for the cost of his counsel's admission pro hac
on the foregoing, I recommend that the Court GRANT in part
and DENY in part Mr. Spencer's motion for attorney's
fees, and award him $5, 000.00 in fees and $400.00 in costs
under the EAJA. Any objections to this Report and
Recommendations must be served and filed within fourteen (14)
days, pursuant to Federal Rule of Civil Procedure 72(b)(2)
and Local Rule 301.5(b).
NOTICE TO PARTIES
to file written objections to the proposed findings,
conclusions and recommendations of the Magistrate Judge
contained in the foregoing report within fourteen (14) days
after being served with a copy of this report may result in
the waiver of any right to a de novo review of the
determinations contained in the report and such failure shall
bar you from challenging on appeal the findings and
conclusions accepted and adopted by the District Judge,
except upon grounds of plain error.