United States District Court, N.D. Texas, Dallas Division
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
D. STICKNEY, UNITED STATES MAGISTRATE JUDGE.
Motion for Attorney Fees, filed March 27, 2011, is before the
Court for recommendation pursuant to the District Court's
Order of Reference. Plaintiff successfully appealed the
denial of her claim for Social Security Income, and her claim
was remanded to the Commissioner, pursuant to the fourth
sentence of 42 U.S.C. § 405(g), for the purpose of
conducting further administrative proceedings. Plaintiff
seeks compensation for 57 hours and 30 minutes at $168.75 per
hour for work performed by an attorney and 8 hours and 15
minutes at $95.00 per hour for work performed by a paralegal,
for a total of $10, 809.45 for attorneys fees and litigation
expenses, including the time spent for litigating the
attorney fees dispute.
Equal Access to Justice Act (“EAJA”) provides for
fees and expenses for parties who prevail in a suit against
Except as otherwise specifically provided by statute, a court
shall award to a prevailing party other than the United
States fees and other expenses, in addition to any costs
awarded pursuant to subsection (a), incurred by that party in
any civil action (other than cases sounding in tort),
including proceedings for judicial review of agency action,
brought by or against the United States in any court having
jurisdiction of that action, 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). To avoid liability for
payment of attorney fees under the EAJA, “the
government has the burden of showing that its position in
every stage of the proceedings was substantially justified by
demonstrating that its action had a reasonable basis in both
law and fact.” Baker v. Bowen, 839 F.2d 1075,
1080 (5th Cir. 1988). Defendant does not contest
Plaintiff's entitlement to attorney fees pursuant to the
EAJA. Nor does it claim that its position was substantially
justified or identify special circumstances that would make
an award unjust. This Court finds that Plaintiff is entitled
to reasonable attorney fees and expenses under the EAJA.
Defendant does not object to the litigation expenses of
$27.25 for postal expenses. The Court finds these expenses
are reasonable and allowable. Plaintiff seeks an hourly rate
of $168.75 for legal work performed by an attorney in 2010
and 2011. Additionally, Plaintiff seeks $95.00 per hours for
paralegal work. These rates have consistently been approved
in this District for work performed in 2010 and 2011, and
Defendant raises no objection to the hourly rates.
Accordingly, the Court finds that the hourly rate of $168.75
for an attorney and $95 for a paralegal should be allowed.
contends that the total number of hours claimed (57.5 hours
for work performed by an attorney and 8.25 hours for work
performed by a paralegal) is plainly excessive in light of
the nature of the case and the work performed. (Resp. at 2.)
Defendant argues that Plaintiff's counsel has expertise
in the Social Security law field and should have been able to
accomplish the same work in only 35 hours, instead of the
57.5 hours that he spent on this case. Defendant claims that
the case did not involve issues of a difficult or novel
nature and concerned issues that are routinely argued in
Social Security cases. Specifically, Defendant contends that
37.33 attorney hours for work on briefs by an attorney
experienced in Social Security law is excessive. Further,
Defendant specifically objects to the 12.66 hours that
counsel spent reviewing and making notes on the record.
Defendant contends that given counsel's representation of
Plaintiff at the administrative hearing, he should have been
relatively familiar with the essential facts and issues
involved in this case. Defendant additionally makes specific
objections to the paralegal time for administrative duties
connecting with filing the case and briefs, and with
receiving the answer and IFP order.
contends Plaintiff should receive no more for attorney fees
than the fees awarded in the typical Social Security
disability case and gives a number of awards in other cases
as examples. Defendant suggests that a fee of $5, 906.24 is a
reasonable fee award in this case. Alternatively, Defendant
requests “a significant reduction” in the amount
that has been requested.
has responded to Defendant's objections. Plaintiff's
counsel contends that the requested fees reflect legal work
reasonably and necessarily expended on Plaintiff's
may order compensation under the EAJA only for attorney hours
that were reasonably expended on the case. 28 U.S.C. §
2412(d)(2)(A). Additionally, the Court should consider the
factors announced in Johnson v. Georgia Highway Express,
Inc., 488 F.2d 714, 717-19 (5th Cir.
1974). See Hall v. Shalala, 50 F.3d 367,
368 (5th Cir. 1995).
Court is extremely familiar with this appeal and with the
time and labor required, the novelty and difficulty of the
questions, and the skill required to perform the legal
services properly. Defendant's objections to
Plaintiff's counsel's request based on excessiveness
in general and excessive briefing in particular, other over
preparation, and the contention that the issue were routine
and easy are not well taken. Additionally without merit are
the objections that an attorney with counsel's expertise
in the subject matter who had represented Plaintiff at the
administrative level should have taken much less time
reviewing the administrative record.
Court finds that Counsel had to apply detailed attention to
the case to find and to cogently present the numerous errors
and to convince the Court that the errors required remand.
The 25-page brief covered 3 major issues with 5 sub issues.
Counsel for the government did not confess any of the errors,
and in fact, took the position that one egregious error was a
typographical error. Counsel was required to file a Reply
brief to address issues in the Response. All of the briefs
that Plaintiff filed greatly assisted the Court in reaching a
decision on its recommendation to the District Court.
Further, the Court agrees with Plaintiff's counsel that
despite his having been present at the administrative review
and despite his expertise in the Social Security field, this
was not an “average” case that would have
required an “average” amount of time. Counsel
would have been remiss had he not reviewed the entire 500
page record thoroughly, despite his representation of
Plaintiff at the administrative level.
Court has scrutinized the itemized fees in this case to
ensure that counsel has made a good faith effort to exclude
excessive, redundant, or otherwise unnecessary fees. The
Court finds that counsel reasonably and necessarily expended
57.5 hours in this case. The number of hours spent briefing
the issues was also reasonable and necessary. Further,
Defendant's objections to the nominal amounts of
paralegal time are without merit. With respect to
Defendant's broad objection to the remaining fees, the
Court finds that although the amount sought is greater than
those awarded in the average Social Security appeal, this was
not an average case. Plaintiff s medical conditions were
numerous and complex, as were the legal issues. The appeal
was well presented which accounts for the success of the
appeal. The results obtained were excellent, justifying a
fully compensatory fee. See Hensley v. Eckerhart,
461 U.S. 424, 429 (1883). The Court finds that compensation
for 57 hours and 30 minutes at $168.75 per hour and 8 hours
and 15 minutes at $95.00 per hour, for a total of $10, 809.45
(including $27.25 in mailing costs) would be reasonable
compensation under the EAJA. Despite Plaintiffs request that
the fees be paid directly to counsel pursuant to an
assignment from Claimant, the Court is bound by United States
Supreme Court precedent to direct that the attorney fees
award in its entirety be paid directly to Plaintiff.
Astrue v. Ratliff, ___ U.S. ___; 130 S.Ct.