United States District Court, S.D. Texas, Houston Division
James A. Culmer, Plaintiff,
Nancy A. Berryhill, Commissioner of the Social Security Administration, Defendant.
MEMORANDUM AND RECOMMENDATION
Christina A. Bryan, United States Magistrate Judge.
case is before the court on Plaintiff's motion for
attorney's fees pursuant to the Equal Access to Justice
Act. Dkt. 15. The Commissioner has responded. Dkt. 16.
April 8, 2019, the district court adopted this court's
Memorandum and Recommendation and issued a Final Judgment
remanding this case the Commissioner for further proceedings.
Dkts. 14. A claimant is entitled to an award of
attorney's fees and expenses under the EAJA if (1) the
claimant is the “prevailing party”; (2) the
government's position was not “substantially
justified”; and (3) there are not special circumstances
that make an award unjust. 28 U.S.C. § 2412(d)(1)(A);
Murkledove v. Astrue, 635 F.3d 784, 790
(5th Cir. 2011). The Commissioner does not dispute
that Plaintiff is the prevailing party and is entitled to an
award of attorney's fees. See Shalala v.
Schaefer, 509 U.S. 292, 302-303 (1993) (a plaintiff who
obtains a remand order is a prevailing party).
counsel requests fees for 37.25 hours at $203.29 per hour,
for a total fee of $7, 572.55. Plaintiff also seeks
reimbursement of the $400.00 filing fee. The Commissioner
objects to the requested hourly rate, to billing for clerical
tasks, and to billing in quarter-hour increments.
attorneys' fees awarded under the EAJA must be
reasonable.” Banks v. Berryhill, Civil Action
No. 4:18-cv-0239, 2019 WL 2084539, at *1 (N.D. Tex. May 13,
2019). The party seeking fees under the EAJA has the burden
to prove that the requested fees are not excessive,
redundant, or otherwise unnecessary under the facts of the
case. DaSilva v. United States Citizenship &
Immigration Servs., 599 Fed.Appx. 535, 544 n.40
(5th Cir. 2014) (citing Hensley v.
Eckerhart, 461 U.S. 424, 433-34 (1983)).
uses the Consumer Price Index - All Urban Consumers (CPI-U)
to arrive at the $203.29 hourly rate. The Commissioner
contends that district courts in the Southern District of
Texas consistently use the CPI rate for the
Houston/Galveston/Brazoria area when deciding reasonable fees
for EAJA purposes. According to the Commissioner, the CPI for
Houston/Galveston/Brazoria area for 2018 and 2019 is $199.58.
The court agrees that it is best to use the rate from this
geographical area. See Baker v. Bowen, 839 F.2d
1075, 1084 (5th Cir. 1988) (courts should use the
CPI rate that most accurately applies to the geographical
area); Rasco v. Berryhill, Civil Action No.
4:17-cv-0946, 2018 WL 3621054, at *4 (June 4, 2018) (using
CPI for Houston/Galveston/Brazoria area to arrive as hourly
rates for 2017 and 2018); Torres v. Astrue, No. CIV.
A. C09-73, 2010 WL 3817130, at *3 (S.D. Tex. Sept. 24, 2010)
(reducing rate from requested $168.46 for 2009 to $166.25
because plaintiff did not utilize the
Houston/Galveston/Brazoria CPI, which tracks CPI for the
Corpus Christi area). The court will adjust Plaintiff's
fee request to reflect an hourly rate of $199.58.
Commissioner next argues that Plaintiff's counsel seeks 3
hours for clerical tasks such as “diary file, ”
going to the post office, and calendaring. Dkt. 16 at 3.
Purely clerical tasks may not be properly billed at an
attorney rate. Missouri v. Jenkins, 491 U.S. 274,
288 n.10 (1989); Leroux v. Astrue, No.
3-10-CV-2634-M, 2012 WL 6757772, at *2 (N.D. Tex. Oct. 26,
2012), report and recommendation adopted, No.
3:10-CV-2634-M, 2013 WL 28577 (N.D. Tex. Jan. 2, 2013)
(“Plaintiff's counsel should not be awarded
attorney's fees for clerical work that could easily be
performed by support staff.”). Therefore, the court
will deduct three hours from the fee request.
Commissioner also requests an additional 1.25 hours be
deducted because Plaintiff's counsel billed in
quarter-hour increments. The Commissioner asserts that
entries on October 31, 2018, November 30, 2018, December 28,
2018, January 31, 2019, and February 28, 2019, all for 0.25
hours to “Review status of file. Re-diary file”
are unreasonable. It is unclear what exactly is involved in
this task, but it is likely that 15 minutes is excessive
given the lack of activity in the case during the period at
issue while summary judgment motions were under consideration
by the court. In addition to the items pointed out by the
Commissioner, counsel also billed .25 hours for reviewing
one-page orders from the court (such as on April 26, 2018 and
June 29, 2018, which also appear duplicative), which is
excessive. See Sandoval v. Apfel, 86 F.Supp.2d 601,
616 (N.D. Tex. 2000) (“The court finds that billing one
quarter-hour to review each of these short and basic
documents is excessive.”). Therefore, overall the court
finds it is reasonable to deduct 1.25 hours from the fee
request due to this billing practice.
reasons discussed above the court recommends that
Plaintiff's EAJA Fee Application (Dkt. 24) be granted in
part and the court award Plaintiff $6, 586.14 (33 hours at
$199.58 per hour) for her reasonable attorney fees in this
Clerk of the Court shall send copies of the memorandum and
recommendation to the respective parties, who will then have
fourteen days to file written objections, pursuant to 28
U.S.C. § 636(b)(1)(c). Failure to file written
objections within the time period provided will bar an
aggrieved party from attacking the factual findings and legal
conclusions on appeal. Douglassv. United ...