Opinion
Civil Action No: 00-2848 Section: "C" (4)
November 30, 2001
REPORT AND RECOMMENDATION
The plaintiff, Rachelle Gardner, has filed an Application for Attorney Fees Under the Equal Access to Justice Act (doc. # 15). The matter has been referred by Judge Ginger Berrigan, Chief Judge Eastern District of Louisiana to the undersigned United States Magistrate Judge for disposition.
I. Background
On May 20, 1996, Lillan Gardner, on behalf of her minor daughter, Rachelle Gardner, filed an application for Supplemental Security Income Benefits under Title XVI of the Act, 42 U.S.C. § 1381. The application alleged a disability onset date of May 1, 1996, due to an affective disorder.
The plaintiffs application was denied by the Social Security Administration initially and upon reconsideration. The plaintiff subsequently made a timely request for hearing. A hearing was held before an Administrative Law Judge ("ALP"). The ALJ denied the plaintiff benefits and the plaintiff, represented by the law firm of Barkan Neff, then filed a timely Request for Review of Hearing Decision. The Appeals Council, however, concluded that there was no statutory basis for a review of the ALJ's decision.
The plaintiff filed a timely complaint with this Court on September 22, 2000, seeking a review of the decision of the Social Security Administration. On March 9, 2000, the plaintiff filed a Motion for Summary Judgment contending that the decision of the Social Security Administration was arbitrary, contrary to law and unsupported by substantial evidence. On April 24, 2001, the defendant filed an Unopposed Motion to Remand the case back to the Social Security Administration. On April 25, 2001, the undersigned issued an order granting the defendant's motion and remanding the case to the Commissioner of the Social Security Administration.
Thereafter, Monica Ferraro, counsel for the plaintiff, timely filed the instant Motion for an Award of Attorney's Fees pursuant to the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412, seeking to recover $3,525.00. This figure represents 27 hours of judicial time at the maximum statutory hourly rate of $125.00 per hour. Also included in the total is $150.00 in Court costs. The Commissioner did not oppose the plaintiff's application. II. Scope of Recoverable EAJA Fees
The EAJA, Title 28 U.S.C. § 2412 (d)(1)(a) provides that:
"[e]xcept 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 . . . 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."See 28 U.S.C. § 2412 (d)(1)(A) (emphasis added).
While the Court notes that the defendant has not filed an opposition to the plaintiffs application for fees, it nonetheless has a duty to independently examine the reasonableness of the fees requested. See, e.g., Curtis v. Bill Hanna Ford. Inc., 822 F.2d 549, 551 (5th Cir. 1987).
Under the EAJA, a court shall award attorneys' fees to a prevailing party "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). There is no dispute that the plaintiff was the prevailing party or that her application for fees was timely. There is also no dispute as to whether the defendant's position was substantially justified or that special circumstances make an award of fees unjust. The only issue is the amount to be awarded. Having determined that the plaintiff is entitled to attorneys' fees under the EAJA, the Court must determine what amount of fees would be considered reasonable.
In Shalala v. Schaefer, the Supreme Court stated that "a party who wins a sentence four remand order is a prevailing party." 509 U.S. 292, 302 (1993). The Court reasoned that "[o]btaining a sentence four judgment reversing the . . . denial of benefits certainly meets th[e] description" of a plaintiff who has "`succeeded on any significant issue in litigation which achieve[d] some of the benefit . . . sought in bringing suit.'" Id. (citation omitted). Plaintiff is entitled to attorney's fees as a prevailing party because she received a remand order from the district court under sentence four of § 405(g). See id. (holding that a party that wins sentence four remand under 42 U.S.C. § 405 (g) is "prevailing party" under EAJA).
III. Reasonable Hourly Rate
First, the Court must determine an appropriate rate to pay. The hourly rate for EAJA fees is set forth in Title 28 U.S.C. § 2412 (d)(2)(A), which states that reasonable attorneys fees:
shall be based upon prevailing market rates for the kind and quality of the services furnished. . . ., except that . . . attorneys fees shall not be awarded in excess of $125 per hour unless the court determines that an increase in the cost of living or a special factor, such as the limited availability of qualified attorneys for the proceedings involved, justifies a higher fee.28 U.S.C. § 2412 (d)(2)(A) (emphasis added). Thus, the plain language of the statute establishes a two-step analysis for determining the appropriate hourly rate to be applied in calculating attorney's fees under the Act. See Clevenger v. Chater, 977 F. Supp. 776, 780-81 (M.D. La. 1997) (outlining two-step analysis for determining appropriate hourly rate under EAJA). The first step in the analysis is to determine the market rate for "similar services [provided] by lawyers of reasonably comparable skills, experience, and reputation." Norman v. Housing Authority of Montgomery, 836 F.2d 1292, 1299 (11th Cir. 1988). The second step, which is needed only if the market rate is greater than $125.00 per hour, is to determine whether the court should adjust the hourly fee upward from $125.00 to take into account an increase in the cost of living, or a special factor. Clevenger, 977 F. Supp. at 781. The Court will address each step in turn.
The EAJA was amended in 1996 to increase the maximum statutory rate from $75 to $125 per hour. 28 U.S.C. § 2412. That amendment applies to civil actions, such as this, commenced on or after its effective date of March 29, 1996. Id. See also, Adams v. Chater, 914 F. Supp. 1365, 1369 (E.D. La. 1995) (citations omitted).
A. Prevailing Market Rate
The applicant bears the burden of producing satisfactory evidence that the requested rates are in line with prevailing market rates. See NAACP v. City of Evergreen, 812 F.2d 1332, 1338 (11th Cir. 1987). Satisfactory evidence of the reasonableness of the rate necessarily includes an affidavit of the attorney performing the work. Blum v. Stenson, 465 U.S. 886, 896 n. 11 (1984). However, it must also speak to rates actually billed and paid in similar lawsuits. Thus, testimony that a given fee is reasonable is not satisfactory evidence of market rate. See Hensley v. Eckerhart, 461 U.S. 424, 439 n. 15 (1983).
Evidence of rates may be adduced through direct or opinion evidence as to what local attorneys charge under similar circumstances. The weight to be given to the opinion evidence is affected by the detail contained in the testimony on matters such as similarity of skill, reputation, experience, similarity of case and client, and breath of the sample of which the expert has knowledge. Norman v. Housing Authority of City of Montgomery, 836 F.2d 1292 (11th Cir. 1988).
As proof of the reasonableness of the of the rates charged, the plaintiff submitted brief biographical information of Monica Ferraro, an affidavit from attorney Paul Brian Spurlock, and prior cases in which plaintiffs, represented by Ferraro, were ultimately awarded attorney fees at the maximum rate of $125.00 per hour.
1. Monica Ferraro
The record shows that Monica Ferraro is a 1992 graduate of Padova Law School, one of the oldest universities in Europe. She was admitted to the Louisiana State Bar in 1998 and has since remained a member in good standing. She is an attorney with Barkan Neff Law Offices, a firm with forty years experience in Social Security law, and has practiced Social Security law with the firm since 1998. She indicates that she has handled approximately 600 social security administrative hearings and numerous appeals before the Appeals Council and United States District Court. She does not provide any indication of her customary billing rate but suggests that the Court grant her the maximum rate of $125.00 per hour.
2. Paul Brian Spurlock
The record shows that Paul Brian Spurlock is a graduate of Loyola University Law School and has over 30 years experience in practicing law. Ninety-five percent of his practice involves representing claimants in matters relating to Social Security and Supplemental Security Income Disability Law. He states that he has been compensated at a rate of $125.00 per hour under the EAJA for representation of claimants in this Court in Social Security and Supplemental Security Income Disability matters for every case in which he served as counsel since the EAJA was amended in 1996.
3. Prior Cases
The plaintiff has also submitted prior successful EAJA applications filed by Barkan Neff on behalf of its clients to support its contention that the maximum rate should be awarded here. In one case, Smith v. Apfel [00-0774 "F" (2)], the Court stated that "plaintiff's counsel in this case are well known to this court as attorneys with knowledge sufficient to handle this matter. . . ." and awarded the plaintiffs attorney fees for 32 hours of work at $125.00 per hour. In Harper v. Apfel [00-1080 "A"], the Court, finding the plaintiff's request for fees both reasonable and sufficiently documented, granted the plaintiff attorney fees for 28.5 hours of judicial time at a rate of $125.00 per hour. Also, in Moore v. Kenneth [99-3857 "R" (5)], because the defendant did not oppose the plaintiffs application, the Court awarded the plaintiff attorney fees for 27.5 hours of work at $125.00 per hour. Finally, in Lodge v. Apfel, 2000 WL 637366, the Court held that a fee of $3,000.00 was reasonable where the plaintiffs attorney performed 24 hours of legal services at a rate of $125.00 per hour.
The Court finds that the biographical information of Monica Ferraro, the affidavit of Paul Brian Spurlock, and the prior cases submitted by the plaintiff is sufficient evidence to establish that the rate of $125.00 is reasonable and appropriate in this case.
B. Adjustments
As previously noted, the second and final step in determining a reasonable hourly rate under EAJA is necessary only when the market rate is greater than $125.00 per hour. The plaintiff does not contend that the $125.00 per hour maximum rate should be increased, thus, the Court's second step analysis is not applicable here.
IV. Hours Reasonably Expended on Litigation
The Court must next determine whether the 27 hours of judicial time were reasonably expended on the litigation. It is well established that the fee applicant bears the burden of documenting and supporting the reasonableness of all time expenditures for which compensation is sought. Hensley v. Eckerhart, 461 U.S. 424, 437 (1983). Applying the Hensley rationale, the Fifth Circuit has observed that "the burden of proof of reasonableness of the number of hours is on the fee applicant and not on the opposing party to prove their unreasonableness, Leroy v. City of Houston, 831 F.2d 576, 586 (5th Cir. 1987).
Counsel for the prevailing party should make a good faith effort to exclude from a fee request hours that are excessive, redundant, and otherwise unnecessary. . . ." Hensley, 461 U.S. at 434. In other words, the Supreme Court requires fee applicants to exercise "billing judgment." Id. at 437. This must necessarily mean that the hours excluded are those that would be unreasonable to bill to a client and therefore to one's adversary irrespective of the skill, reputation or experience of counsel. id. at 434. The district court has considerable discretion in this area because of its familiarity with the case and the attorney's work. See Associated Builders Contractors, Inc. v. Orleans Parish School Bd., 919 F.2d 374 379 (5th Cir. 1990).
In the instant case, the "Itemization of Time In Support of EAJA Fees" attached to plaintiff's application can be readily grouped into eight general categories: review of file to determine viability of appeal (3.50); preparation of the complaint (.5); review of administrative record (6.00); preparation of plaintiff's Motion for Summary Judgment (6.00); client communication (7.00); receipt and review of defendant's pleadings and communication with opposing counsel (.50); review of court orders (.75); and preparation and filing of plaintiff's Application for Award of Attorney's Fees (2.75).
See "Itemization of Time in Support of EAJA Fees" attached to Rec. doc. #15.
It is well established that fees may not be recovered for time spent on the administrative level prior to filing of the civil action in a district court. Brown v. Sullivan, 917 F.2d 189, 191 (5th Cir. 1990). However, it is clearly within this Court's discretion to allow reasonable fees for preparation of the complaint and steps taken initiating the appeal. O'Neal v. Shalala, 1995 WL 317311, *1 (E.D. La. May 23, 1995) (Lemelle, J.); Gitto v. Secretary of U.S. Dept. of Health Human Services, 637 F. Supp. 194, 196 (E.D. N.Y. 1986). The Court finds that the plaintiff should recover for time spent in preparation of the complaint and initiating the appeal.
A review of the listed hourly activities reveals that the plaintiff seeks payment of fees for 6.00 hours of time generated reviewing the administrative record, "framing issues for Motion for Summary Judgment" and conducting legal research. She also seeks 6.00 hours of time generated during the drafting of the Motion for Summary Judgment. However, the Court observes that the memorandum in support of her motion is only a little over five pages in length. The first three pages consist of a statement of facts while only two pages incorporate any law and argument. The Court finds that the 12 hours sought for work done in connection with the Motion for Summary Judgment is excessive. The Court finds that no more than 4.00 hours for framing issues and conducting research for the plaintiff's Motion for Summary Judgment and 4.00 hours for drafting the Motion for Summary Judgment are reasonable under these circumstances for a total of 8.00 hours.
The Court calculated 6.00 hours based on the following entries: 1/10/01 (2.5); 1/16/01 (3.5).
The Court calculated 6.00 hours based on the following time entries: 1/19/01 (2.50); 1/31/01 (2.00); 2/27/01 (1.5).
See Rec. Doc. #9.
Similarly, the Court finds that the hours billed for preparing and filing the instant fee application, 2.75 hours, are excessive. Although reasonable "fees for fees" are recoverable under the EAJA, the Court observes that the memorandum submitted in this case is the same memorandum that was filed in several other recent cases by counsel. The Court will not exclude these hours from recovery, but will reduce them to a more reasonable time of 1.00 hour.
See time entry for July 24. 2001.
Commissioner, I.N.S. v. Jean, 496 U.S. 154, 160-63 (1990); Powell v. Commissioners of Internal Revenue, 891 F.2d 1167, 1170-71 (5th Cir. 1990); Quality C.A.T.V., Inc. v. NLRB, 969 F.2d 541, 547 (7th Cir. 1992).
Winfield v. Social Security Administration, Civ. A. No. 00-1302 "L" Application for Attorney Fees filed on May 8, 2001 at Rec. doc. #12; Bressard v. Apfel, Civ. A. No. 00-0285 "J" Application for Attorney Fees filed on December 11, 2001 at Rec. doc. #11; Smith v. Apfel, Civ. A. No. 00-0774 "F," Application for Attorney Fees filed on December 11, 2001 at Rec. doc. #11; Harper v. Apfel, Civ. A. No. 00-1080 "A," Application for Attorney Fees filed on December 11, 2000, at Rec. doc. #10; Moore v. Apfel, Civ. A. No. 99-3857 "R," Application for Attorney Fees filed on December 20, 2000 at Rec. doc. #9: Baker v. Apfel, Civ. A. No. 00-1557 "R," Application for Attorney Fees filed on January 12, 2001 at Rec. doc. #13; Dillion v. Apfel, Civ. A. No. 00-1601 "T," Application for Attorney Fees filed on April 17, 2001, at Rec. doc. #14.
After deducting a total of 5.75 hours, the Court finds that 21.25 hours were reasonably expended on the instant litigation. Also, the plaintiff is entitled to receive $150.00 in Court costs. See Weakley v. Bowen, 803 F.2d 575, 580 (10th Cir. 1986) (court fees of $130.00 awarded as part of EAJA 2412(d) award); Sorich v. Shalala, 838 F. Supp. 1354, 1360 (D.Neb. 1993) (filing fees advanced by counsel awardable under section 2412(d), even though also taxable against the government under subsection (a), but not recoverable twice); Kendig v. Shalala, 1993 WL 289854, *1 (E.D.Pa. 1993) (court filing fees . . . are reimbursable under section 2412(d)). Applying an hourly rate of $125.00 to 21.25 hours, the plaintiff is entitled to $2,656.25 plus $150.00 in Court costs for a total of $2,806.25.
V. Recommendation
For the reasons set forth herein, it is RECOMMENDED that the plaintiffs Application for Attorney Fees Under the Equal Access to Justice Act (doc. # 15) be GRANTED and that the plaintiff be awarded his reasonable attorney's fees in the amount of $2,806.25.
A party's failure to file written objections to the proposed findings, conclusions, and recommendation in a Magistrate Judge's Report and Recommendation within ten (10) days after being served with a copy shall bar that party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the district court, provided that the party has been served with notice that such consequences will result from a failure to object. Douglass v. United Services Auto. Ass'n, 79 F.3d 1415, 1430 (5th Cir. 1996) (en banc).