Dixon v. Astrue

Full title: HENRIETTA DIXON, Plaintiff, v. MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL…

Court: United States District Court, M.D. Alabama, Eastern Division

Date published: Jan 13, 2010

CIVIL ACTION NO. 3:07cv333-TFM (M.D. Ala. Jan. 13, 2010)

Opinion

CIVIL ACTION NO. 3:07cv333-TFM.

January 13, 2010

MEMORANDUM OPINION AND ORDER

TERRY MOORER, Magistrate Judge

The Court has reviewed the Plaintiff's Motion for Award of Attorney Fees Under the Equal Access to Justice Act and the Social Security Act (Doc. 25, filed July 1, 2009), the Defendant's Response (Doc. 29, filed July 22, 2009), and Plaintiff's Reply (Doc. 30, filed July 23, 2009). Plaintiff requests payment of attorney fees in the amount of $9,176.32 under the Equal Access to Justice Act (EAJA).

BACKGROUND

On September 25, 2007, the undersigned affirmed a decision by the Commissioner of the Social Security Administration (SSA) to deny benefits to Plaintiff. On April 10, 2009, the Eleventh Circuit Court of Appeals vacated and remanded this Court's decision. On July 1, 2009, Plaintiff filed a motion for attorney's fees under the Equal Access to Justice Act (EAJA) ( 28 U.S.C. § 2412) and the Social Security Act (the Act). The motion includes affidavits and exhibits in support of the requested EAJA payment of $9,176.32 for 53.60 attorney hours at the rate of $171.20 per hour. (Doc. 25.)

The Commissioner's Response "does not oppose an award of reasonable EAJA fees," but argues the number of hours billed is excessive, and objects to the hourly rate submitted by counsel. (Doc. 29.) Specifically, the Commissioner objects to 3.6 hours attorney hours for preparation of the appeal. The 3.6 hours represents preparation of the in forma pauperis statement, federal complaint, summons, civil cover sheet, and magistrate consent form, as well as review of the initial order. The Commissioner argues the documents are all routine and do not justify 3.6 hours of effort when one considers counsel's long experience in Social Security disability litigation. Further, the Commissioner argues 7.7 attorney hours in preparation for mediation with the Eleventh Circuit are excessive. The Response asserts that counsel was aware of SSA's position that Social Security cases are generally inappropriate for mediation.

The Commissioner's final objection is the hourly rate submitted by counsel is too high, and argues it is inappropriate for counsel to use the Consumer Price Index (CPI) rate for April, 2009 ($171.20), when the work was performed in 2007 and 2008. The hourly rates suggested by the Commissioner are $166.46 for 2007 entries and $172.85 for those in 2008.

The Commissioner does not object to EAJA fees being paid directly to counsel, pursuant to the Fee Agreement executed by Plaintiff, subject to the Department of Treasury offset, in accordance with 31 C.F.R. § 285.5(e)(6)(ii).

Plaintiff filed a supplement in support of the fee application. (Doc. 30.) In the supplement, Plaintiff claims the 3.6 hours for appeal preparation included counsel's meeting with Plaintiff and preparation of a memorandum on issues for appeal. Counsel also clarified that only .9 hours of the total time was expended on document preparation. Counsel believes these actions were required under Rule 11 of the Federal Rules of Civil Procedure, as it imposes an obligation to determine the appeal merit of a case before filing a civil action. Plaintiff argues in her supplement that the 7.7 hours of preparation for mediation were expended without any knowledge of a policy forbidding mediation of SSA cases in the Eleventh Circuit.

DISCUSSION

The Commissioner asks this Court to "prune unnecessary hours from fee applications, because `[c]ourts are not authorized to be generous with the money of others, and it is as much the duty of courts to see that excessive fees and expenses are not awarded as it is to see that an adequate amount is awarded.'" ACLU v. Barnes, 168 F.3d 423, 428 (11^th Cir. 1999). When making fee awards, this Court is obligated to articulate its decisions with principled reasons. Id. at 427, citing Norman v. Housing Auth. Of Montgomery, 836 F.2d 1292, 1304 (11^th Cir. 1988).

Excessive Hours

The Commissioner's objection to the 3.6 hours billed for the preparation of Plaintiff's appeal emphasizes the routine nature of social security litigation, and the fact that counsel represented Plaintiff before the agency and was therefore familiar with her case. Counsel, Micki Beth Stiller, responded that only .9 hours were expended in document preparation, while the remainder consisted of a meeting with Plaintiff and preparation of a memorandum addressing issues for appeal. Counsel argues her familiarity with the case does not void her obligation to ensure the case merits appeal to this Court. Counsel's time sheet delineates the entries in dispute from January 22, 2007 to April 19, 2007.

in forma pauperis

2.1 hours — Detailed conference with client re: case in federal court' review adverse Decisions; discuss medical impairments; prepare memo on appeal issues/strategy; and review information on financial status .4 — Prepare IFP ( form) for client .9 — Prepare Federal Court Complaint; review and revise; prepare summons, and civil cover sheet .2 — Review Initial Order and sign Consent to Jurisdiction by U.S. Magistrate Judge (Doc. 25-3, at 3.)

Upon careful review of the tasks, time claimed, and Plaintiff's in forma pauperis application, the Court finds the separate billing of 18 to 24 minutes for IFP preparation is excessive.¹ The reasons for this finding are that the actual gathering of the financial information occurred during the client meeting (2.1 hours), while the completed form is not detailed, and does not appear to have taken as much as 18 minutes to complete. The Court acknowledges counsel's role in preparation of the IFP, and allows .2 hours (up to twelve minutes) for billing purposes.

1 The Court assumes the standard industry billing practices of dividing an hour into increments of six minutes, wherein six minutes is represented as .1 hour. Any time in excess of six, or a multiple thereof, produces an additional tenth of an hour for billing purposes. Thus, .4 hours may be as little as 18 minutes and 1 second, or as much as a full 24 minutes.

Counsel's experience in SSA litigation is a factor considered by the Court in its review of the time it took for counsel to review the initial scheduling order and execute the Consent to Jurisdiction form. Scheduling orders in social security cases are identical with the exception of Plaintiff's name and the date of entry. The Court cannot fathom that more than six minutes were required to review and give consent for a magistrate's jurisdiction. Therefore, the April 19, 2007, entry is reduced from .2 hours to .1 (up to six minutes). This adjustment, and the previous one for IFP preparation, produces a total decrease of .3 hours in counsel's billable hours.

The Commissioner argues counsel was aware of agency policy against the mediation of SSA cases, and therefore, the 7.7 hours billed for that purpose should be subject to the highest scrutiny. The time sheet submitted by Charles S. Martin shows he was informed by an attorney in SSA's Office of General Counsel (OGC) that she did not think SSA cases were appropriate for mediation. See Entry of December 18, 2007, Doc. 25-4, at 4. The communication from OGC did not firmly close the door to mediation because OGC agreed in the same e-mail to extend the briefing schedule to accommodate Plaintiff's attempt to mediate. It was not until February 11, 2008, that counsel was told by the Eleventh Circuit mediator that the Commissioner chose not to settle. At that point counsel terminated his efforts (and billing entries) related to mediation. Another notable factor in this matter is the fact that the mediator was seemingly unaware that SSA cases were not mediated on policy grounds. An entry for January 29, 2008, shows that OGC communicated with the mediator directly and had not, as of that date, made a final determination that it would not mediate.

The entry of February 11, 2008 shows the agency did not firmly end its participation in mediation until that date. Though the entries demonstrate a clear reluctance on the part of the agency to proceed with mediation, counsel should not be punished for uncertainty by the agency. The Court finds the time billed for mediation is valid and should be included in the final fee award.

Hourly Rate

The Commissioner's final objection to counsel's fee concerns the hourly rate to be paid for work primarily performed in 2007 and 2008. Plaintiff seeks payment at the rate of $171.20, based on the EAJA's specified hourly rate of $125.00 after adjustment for inflation, using the Consumer Price Index (CPI) as of April 2009. (Doc. 25-2, at 3.) The Commissioner argues the CPI figures for 2007 and 2008 would be more appropriate because all work on the case, except one time entry, was completed in those years. The CPI for those years produces a lower hourly rate of $166.46 for 2007, and a higher rate of $172.85 for 2008. (Doc. 29, at 3.)

Plaintiff supports her use of the 2009 CPI by noting the Eleventh Circuit's direction to "generally award compensation at current rates rather than at historic rates." Norman, id. at 1302. The Court appreciates the Commissioner's argument for prudence with taxpayer funds, but finds no reason to oppose the award for the rates current at the time the fee application was made. Given the clear preference in this Circuit to compensate at current rates, the Court is reluctant to cull or increase the rates without some justification for departing from the guidance in Norman. Accordingly, the Court approves counsel's requested hourly rate of $171.20, as it is consistent with controlling precedent on fee awards.

Potential for Additional Fee Requests

Plaintiff's motion requests that, in the event past due benefits are award on remand, she be allowed to file for fees up to 30 (thirty) days after receiving the formal notice from the SSA of such award. The Commissioner has no objection, but simply cautions that there has been no agency action which would generate an award of past due benefits.

CONCLUSION

Having approved counsel's requested hourly rate of $171.20, the Court reduces the total compensable attorney hours under EAJA from 53.6 hours by .3 hours, yielding a total of 53.3 hours. This reduces the requested fee of $9,176.32 to an approved fee of $9,124.96.

Accordingly, it is the ORDER, JUDGMENT, and DECREE of this Court

(1) That the Plaintiff's application for an award of fees and expenses under the Equal Access to Justice Act is GRANTED in the total amount of $9,124.96;

(2) That the award be made payable to Plaintiff's counsel, Micki Beth Stiller, minus any Department of Treasury offset, via an electronic funds transfer; and

(3) Should Plaintiff be awarded past due benefits, she is allowed 30 (thirty) days from receipt of notice of such to seek attorneys fees under 42 U.S.C. § 406(b).

A copy of this checklist is available at the website for the USCA, 11th Circuit at www.ca11.uscourts.gov Effective on April 9, 2006, the new fee to file an appeal will increase from $255.00 to $455.00. CIVIL APPEALS JURISDICTION CHECKLIST 1. Appealable Orders : Appeals from final orders pursuant to 28 U.S.C. § 1291: 28 U.S.C. § 158Pitney Bowes, Inc. v. Mestre 701 F.2d 1365 1368 28 U.S.C. § 636 In cases involving multiple parties or multiple claims, 54Williams v. Bishop 732 F.2d 885 885-86 Budinich v. Becton Dickinson Co. 108 S.Ct. 1717 1721-22 100 L.Ed.2d 178LaChance v. Duffy's Draft House, Inc. 146 F.3d 832 837 Appeals pursuant to 28 U.S.C. § 1292(a): Appeals pursuant to 28 U.S.C. § 1292(b) and Fed.R.App.P. 5 28 U.S.C. § 1292 Appeals pursuant to judicially created exceptions to the finality rule: Cohen v. Beneficial Indus. Loan Corp. 337 U.S. 541 546 93 L.Ed. 1528Atlantic Fed. Sav. Loan Ass'n v. Blythe Eastman Paine Webber, Inc. Gillespie v. United States Steel Corp. 379 U.S. 148 157 85 S.Ct. 308 312 13 L.Ed.2d 199 2. Time for Filing Rinaldo v. Corbett 256 F.3d 1276 1278 4 Fed.R.App.P. 4(a)(1): 3 THE NOTICE MUST BE RECEIVED AND FILED IN THE DISTRICT COURT NO LATER THAN THE LAST DAY OF THE APPEAL PERIOD — no additional days are provided for mailing. Fed.R.App.P. 4(a)(3): Fed.R.App.P. 4(a)(4): Fed.R.App.P. 4(a)(5) and 4(a)(6): Fed.R.App.P. 4(c): 28 U.S.C. § 1746 3. Format of the notice of appeal : See also 3pro se 4. Effect of a notice of appeal : 4 Courts of Appeals have jurisdiction conferred and strictly limited by statute: (a) Only final orders and judgments of district courts, or final orders of bankruptcy courts which have been appealed to and fully resolved by a district court under , generally are appealable. A final decision is one that "ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." , , (11th Cir. 1983). A magistrate judge's report and recommendation is not final and appealable until judgment thereon is entered by a district court judge. (c). (b) a judgment as to fewer than all parties or all claims is not a final, appealable decision unless the district court has certified the judgment for immediate review under Fed.R.Civ.P. (b). , , (11th Cir. 1984). A judg ment which resolves all issues except matters, such as attorneys' fees and costs, that are collateral to the merits, is immediately appealable. , 486 U.S. 196, 201, , , (1988); , , (11th Cir. 1998). (c) Appeals are permitted from orders "granting, continuing, modifying, refusing or dissolving injunctions or refusing to dissolve or modify injunctions . . ." and from "[i]nterlocutory decrees . . . determining the rights and liabilities of parties to admiralty cases in which appeals from final decrees are allowed." Interlocutory appeals from orders denying temporary restraining orders are not permitted. (d) : The certification specified in (b) must be obtained before a petition for permission to appeal is filed in the Court of Appeals. The district court's denial of a motion for certification is not itself appealable. (e) Limited exceptions are discussed in cases including, but not limited to: , , , 69S.Ct. 1221, 1225-26, (1949); , 890 F.2d 371, 376 (11th Cir. 1989); , , , , , (1964). Rev.: 4/04 : The timely filing of a notice of appeal is mandatory and jurisdictional. , , (11th Cir. 2001). In civil cases, Fed.R.App.P. (a) and (c) set the following time limits: (a) A notice of appeal in compliance with the requirements set forth in Fed.R.App.P. must be filed in the district court within 30 days after the entry of the order or judgment appealed from. However, if the United States or an officer or agency thereof is a party, the notice of appeal must be filed in the district court within 60 days after such entry. Special filing provisions for inmates are discussed below. (b) "If one party timely files a notice of appeal, any other party may file a notice of appeal within 14 days after the date when the first notice was filed, or within the time otherwise prescribed by this Rule 4(a), whichever period ends later." (c) If any party makes a timely motion in the district court under the Federal Rules of Civil Procedure of a type specified in this rule, the time for appeal for all parties runs from the date of entry of the order disposing of the last such timely filed motion. (d) Under certain limited circumstances, the district court may extend the time to file a notice of appeal. Under Rule 4(a)(5), the time may be extended if a motion for an extension is filed within 30 days after expiration of the time otherwise provided to file a notice of appeal, upon a showing of excusable neglect or good cause. Under Rule 4(a)(6), the time may be extended if the district court finds upon motion that a party did not timely receive notice of the entry of the judgment or order, and that no party would be prejudiced by an extension. (e) If an inmate confined to an institution files a notice of appeal in either a civil case or a criminal case, the notice of appeal is timely if it is deposited in the institution's internal mail system on or before the last day for filing. Timely filing may be shown by a declaration in compliance with or a notarized statement, either of which must set forth the date of deposit and state that first-class postage has been prepaid. Form 1, Appendix of Forms to the Federal Rules of Appellate Procedure, is a suitable format. Fed.R.App.P. (c). A notice of appeal must be signed by the appellant. A district court loses jurisdiction (authority) to act after the filing of a timely notice of appeal, except for actions in aid of appellate jurisdiction or to rule on a timely motion of the type specified in Fed.R.App.P. (a)(4).