Opinion
1:01CV901.
May 14, 2003.
ORDER
Before the Court is Plaintiff's Motion for Attorney's Fees [Document #19] filed on February 4, 2003, pursuant to the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412(d). Based upon an attached time sheet of services rendered by Plaintiff's attorney on her behalf, Plaintiff requests attorney's fees at the rate of $125.00 per hour for seventeen (17) hours for a total award of $2,125.00. Defendant, the Commissioner of Social Security, filed a Memorandum in Opposition to Plaintiff's Motion for Attorney's Fees [Document #20] in which she concedes that Plaintiff was the prevailing party and that Plaintiff's attorney reasonably expended services on behalf of her client. This concession by the Commissioner was based upon action taken by the Court in a prior Order [Document #17] and Judgment [Document #18] which reversed the Commissioner's decision finding no disability and remanded Plaintiff's claim to the Commissioner for further consideration pursuant to sentence four of 42 U.S.C. § 405(g). The Commissioner argues, however, that the hourly rate sought and the number of hours requested by Plaintiff's attorney are excessive and warrant reduction.
The Equal Access to Justice Act provides in part that "the amount of fees awarded under this subsection shall be based upon prevailing market rates for the kind and quality of services furnished," except that "attorney fees shall not be awarded in excess of $125 per hour unless the court determines that an increase in the costs 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)(ii) (West Supp. 2002). Accordingly, part of the Court's determination of the appropriate fee must include a consideration of the prevailing market rate in the Middle District of North Carolina, for similar services provided by lawyers of reasonably comparable skills, experience and reputation. Blum v. Stenson, 465 U.S. 886, 895-96 n. 11 (1984); Norman v. Hous. Auth. of the City of Montgomery, 836 F.2d 1292,1299 (11th Cir. 1998). Plaintiff therefore bears the burden of producing evidence which demonstrates that the requested rate is consistent with the prevailing market rate in the community. Norman, 836 F.2d at 1299. In the instant case, Plaintiff's attorney initially requested the maximum rate of $125.00 as a reasonable hourly rate without a reference in her Motion to the prevailing market rate for such services in the Middle District of North Carolina. However, in a Reply to Defendant's Memorandum in Opposition to Plaintiff's Motion for Attorney's Fees [Document #22], Plaintiff, in support of her attorney's hourly fee request, cited an Order of this Court inHogan v. Apfel, 1:99CV00248 (October 27, 2000), in which it was determined that the maximum hourly rate of $125.00 was more than reasonable in that particular case. Plaintiff's counsel inHogan had requested an increase in the maximum statutory hourly rate based upon a 3.73% increase in the consumer price index as reported by the U.S. Department of Labor, Bureau of Labor Statistics on August 4, 1999. The Court in Hogan, however, refused to exceed the maximum hourly rate based upon a cost of living increase as suggested by Plaintiff. (See Pl.'s Reply to Def.'s Opp'n to Pl.'s Mot. for Att'y's Fees, Attach. A.) Of particular note, Plaintiff also submitted an Order from the Western District of North Carolina in the case of Reed v. Barnhart, 3:00CV644-MU (April 25, 2002), in which the court considered a petitioner's request for an increase in the statutory cap of $125.00 per hour to $141.00 per hour based upon the increase in the cost of living that had occurred since the enactment of the controlling statute in 1996. The court inReed granted plaintiff's request based upon a cost of living increase and awarded a fee calculated with the higher hourly rate.
Plaintiff in the instant case acknowledged that she did not request a cost of living increase in the statutory cap, but rather Plaintiff contends that an hourly rate of $125.00 would be reasonable for her attorney, based upon her attorney's legal experience in the area of Social Security law since 1983, her work in federal court since 1985, and her work in this case in particular. In response to this evidence, the Commissioner proffered evidence that the prevailing market rate in the Middle District of North Carolina is $110.00 per hour based upon the requests submitted in four cases between April 18, 2002 and September 18, 2002, by attorneys who regularly appear in these types of proceedings before the Court. Defendant's representation may very well be correct that the prevailing market rate for these type of proceedings within the Middle District of North Carolina is $110.00 per hour. However, this may be the case because in most cases, such as in Bouldin v. Barnhart, 1:01CV783, Defendant has either consented to or expressed no opposition to a fee request that was based upon an hourly rate of $110.00. (See Def.'s Opp'n to Pl.'s Mot. for Att'y's Fees, Attach. 1.) The existing prevailing market rate in the Middle District of North Carolina appears to reflect the maximum rate at which Defendant will not raise an objection. This seems to be highlighted by the fact that in each of the four cases cited by Defendant for what the prevailing rate was, Defendant did not oppose a fee request based upon an hourly rate of $110.00. This rate by all indication seems not to have changed since the enactment of the 1996 Amendment to the statute, which set the $125.00 maximum hourly rate for fee requests filed pursuant to the EAJA.
The four cases submitted by Defendant from the Middle District of North Carolina are Bouldin v. Barnhart, 1:01CV783 (April 18, 2002); Hartsook v. Barnhart, 1:01C '96C (June 26, 2002); McClintock v. Barnhart, 1:02CV143 (September 23, 2002); and Stogner v. Barnhart, 1:01CV514 (April 29, 2002).
The Court, however, has the discretionary authority to determine what a reasonable fee will be under any given circumstances. 28 U.S.C. § 2412(b); May v. Sullivan, 936 F.2d 176 (4th Cir. 1991) (per curiam) (noting that discretion lies with the district court to determine a reasonable fee award). As the court acknowledged in Reed, cited above, there has been an increase in the cost of living since the enactment of the statutory cap in 1996. This is certainly true, as noted by the Court in Hogan, to the extent that as much as a 3.73% increase in the cost of living has occurred since the enactment of the statutory cap. As previously noted, Plaintiff in the instant case did not request a cost of living increase in this case, nor is the Court inclined to grant one in this case. However, in establishing reasonable attorney's fees, it would certainly appear to the Court, that an hourly rate of $125.00 would be a reasonable hourly rate for the services rendered by an attorney with the legal experience Plaintiff's attorney represents that she possesses. This $15.00 increase in what heretofore has been identified by Defendant as the prevailing market rate of $110.00 since 1996 may very well represent in this Court, at least, the prevailing market rate for future cases filed by attorneys with the skill level and experience of Plaintiff's attorney. Such a minor increase, even without regard to consideration of a cost of living adjustment, appears to be a reasonable hourly rate for the services being provided for persons who successfully prosecute Social Security claims. At worst, the minor increase awarded under the circumstances identified by the Court represents a fair exchange to the Court, if indeed as Plaintiff's attorney suggests that "perhaps time would be saved by parties and the court if the court would provide guidance as to a higher rate generally applicable for experienced Social Security attorneys." (See Pl.'s Reply to Def.'s Opp'n to Pl.'s Mot. for Att'y's Fees at 5.)
Even with the modification of the hourly rate to be paid in this case, the Court still maintains the discretion to determine the reasonableness of the time alleged to have been expended on Plaintiff's behalf. Having otherwise reviewed the reasonableness of Plaintiff's Motion for Attorney's Fees along with Defendant's objections, the Court finds that Plaintiff's attorney's overall expenditure of time in successfully representing Plaintiff in this matter is not unreasonable nor would an award based upon seventeen hours of work on Plaintiff's behalf result in a windfall to Plaintiff's attorney. Plaintiff's attorney is therefore entitled to claim compensation for seventeen (17) hours of work on behalf of Plaintiff. Based upon a reasonable hourly rate of $125.00 per hour for seventeen (17) hours of time spent, Plaintiff's attorney is entitled to receive total compensation in the amount of $2,125.00.
IT IS THEREFORE ORDERED that Plaintiff's Motion for Attorney's Fees is hereby GRANTED. IT IS FURTHER ORDERED that Plaintiff is entitled to recover reasonable attorney's fees in the amount of $2,125.00 pursuant to the Equal Access to Justice Act.