Summary
In Nave, although the court approved a rate in excess of $125 per hour, no mention was made of any cost of living adjustment, thus the increase to the statutory rate may have been based upon some other factor.
Summary of this case from Masenthin v. BarnhartOpinion
Case No. 03-2076-JWL
October 7, 2003
MEMORANDUM ORDER
Plaintiff Ellis L. Nave brought this action pursuant to 42 U.S.C. § 405(g) and 1383(c)(3) seeking judicial review of the decision of defendant, the Commissioner of Social Security, to deny his application for supplemental security income under Title XVI of the Social Security Act. In response, defendant moved the court to reverse the decision of the Commissioner and remand the case to the Commissioner pursuant to sentence four of § 405(g). On July 9, 2003, the court granted defendant's motion, reversed the decision of the Commissioner and remanded the case for further administrative proceedings. On the same day, judgment was entered in favor of plaintiff. This matter is now before the court on plaintiffs motion for attorney's fees pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412. Specifically, plaintiff moves for an award of fees in the amount of $4118.00 and for other expenses in the amount of $150.00. The fee request represents 28.40 hours of work at the rate of $145.00 per hour.
Defendant does not dispute that plaintiff is entitled to an award of attorney's fees in this case and does not challenge the hourly rate sought by plaintiffs counsel. Rather, defendant argues only that certain amounts of time expended by plaintiffs counsel are unreasonable in light of the nature of the tasks performed. First, defendant challenges plaintiffs counsel's request for reimbursement for 1.75 hours of time spent preparing the civil cover sheet, complaint and summons. Defendant suggests that this amount of time is excessive given the simplicity of preparing such documents. The court agrees that 1.75 hours of time seems excessive in as much as the complaint in these types of cases is a "boilerplate" document and preparation of the civil cover sheet and summons is a clerical duty for which attorney time should not be charged. See Dionne v. Barnhart, 230 F. Supp.2d 84, 87 (D. Me. 2002). The court concludes that .75 hours of time is reasonable for the services in question and, thus, reduces plaintiffs request by $145.00 (reflecting a reduction of 1 hour at a rate of $145 per hour). See id.
Next, defendant challenges plaintiffs counsel's request for reimbursement for 1.00 hour spent electronically filing the motion for judgment and accompanying brief. According to defendant, this task should have been completed by support staff and, in any event, the government should not bear the costs of plaintiffs counsel's inexperience with electronic filing or any technical difficulties he may have experienced. The court agrees that 1.00 hour of time spent to file these documents using the court's electronic case filing system is excessive and concludes that .25 hours of time is more reasonable for such tasks. Thus, the court further reduces plaintiffs request by $108.75 (reflecting a reduction of .75 hours at a rate of $145 per hour).
Finally, defendant disputes the reasonableness of the amount of time plaintiffs counsel spent drafting, reviewing and editing his brief. In that regard, plaintiffs counsel spent 22.2 hours completing his brief, including 10.35 hours spent reviewing and summarizing plaintiffs testimony, reviewing and summarizing the testimony of plaintiffs medical and vocational experts, and reviewing and summarizing plaintiffs medical evidence. Defendant urges that the total amount of time plaintiffs counsel spent on the brief, as well as the time he spent reviewing and summarizing the evidence described above, is excessive for what defendant deems a "straightforward Social Security disability case which did not involve particularly difficult, complex or novel issues."
As several judges in this district have noted, however, the typical number of hours claimed in EAJA applications in "straightforward" disability cases is between thirty and forty. See Culler v. Massanari, 2001 WL 1718033, at *2 (D. Kan. Dec. 20, 2001) (for "relatively straightforward" social security case, permitting plaintiffs counsel to recover fees for 40 hours of time expended); Peoples v. Shalala, 1995 WL 462213, at *2 (D. Kan. July 27, 1995) (where nothing about the case appeared to warrant an "extra" expenditure of time, court would not permit plaintiffs counsel to recover more than the "typical" amount of hours expended-between thirty and forty); Austin v. Shalala, 1994 WL 114845, at *2 (D. Kan. Apr. 1, 1994) (finding that recovery for 40 hours of total time expended is reasonable for typical social security case). Thus, even accepting defendant's argument that this case was a typical social security case, plaintiffs counsel has spent fewer hours on the case than other counsel in similar cases. In short, plaintiffs counsel's request for 22.2 hours spent completing the brief in no way appears unreasonable to the court. See Cameron v. Barnhart, 2002 WL 31079435, at *4 (10th Cir. Sept. 17, 2002) (plaintiffs request for 25.2 hours spent on opening district court brief "is well within the bounds of reasonable and necessary time spent on this activity").
To summarize, then, the court subtracts $145.00 and $108.75 from plaintiffs total request of $4118.00, with a resulting total fee award of $3864.25. The court further orders that defendant reimburse plaintiff for the $150.00 filing fee-an expense for which defendant expressly agrees plaintiff should be compensated.
IT IS THEREFORE ORDERED BY THE COURT THAT plaintiffs motion for attorney's fees (doc. #11) is granted in part and denied in part. Specifically, plaintiff is entitled to recover fees in the amount of $3864.25 plus $150.00 for his filing fee.
IT IS SO ORDERED.