Opinion
Case No. 5:14-CV-4028-JTM
11-05-2015
DESIREE A. WILLIAMS, Plaintiff, v. CAROLYN W. COLVIN, Acting Commissioner of Social Security Defendant.
MEMORANDUM AND ORDER
Before the court is plaintiff Desiree A Williams' application for attorney fees, pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412 ("EAJA"). Dkt. 23.
I. Factual and Procedural Background
In January 2011, plaintiff filed an application for Supplemental Security Income, pursuant to Title XVI of the Social Security Act, alleging disability beginning January 1, 2005. Plaintiff's application was denied initially on September 6, 2011, and upon reconsideration on January 30, 2012. Plaintiff timely filed a request for hearing, which was held on October 30, 2012, before an Administrative Law Judge ("ALJ"). Despite finding various severe impairments, the ALJ denied plaintiff's application for benefits on December 7, 2012. This decision became the final decision of the Commissioner on February 11, 2014, when the Appeals Council denied review.
Plaintiff thereafter filed an appeal in the United States District Court for the District of Kansas. Dkt. 1. The Commissioner opposed the appeal. Dkt. 18. On July 14, 2015, this court issued a Memorandum and Order reversing and remanding the decision of the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g). Dkt. 21. On October 13, 2015, plaintiff filed a Motion for Attorney Fees (Dkt. 23) seeking $5,134.13 for 26.90 hours ofwork. The Commissioner did not file a response.
II. Legal Standard
The EAJA requires a court to award fees and other expenses to a prevailing party in a suit against an agency of the United States "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); see also Goatcher v. Chater, 57 F.3d 980, 981 (10th Cir. 1995). A plaintiff who obtains a sentence four remand under 42 U.S.C. § 405(g) is a prevailing party for EAJA purposes. Shalala v. Schaefer, 509 U.S. 292, 301-02 (1993).
The Commissioner bears the burden to show that her position was substantially justified. Gilbert v. Shalala, 45 F.3d 1391, 1394 (10th Cir. 1995). "A position can be justified even though it is not correct, and . . . can be substantially (i.e., for the most part) justified if a reasonable person could think it correct, that is, if it has a reasonable basis in law and fact." Pierce v. Underwood, 487 U.S. 552, 566 n.2 (1988). "In determining whether the Commissioner's position was substantially justified, the court focuses on the issue(s) that led to remand—not the issue of disability." Brooks v. Barnhart, 2006 U.S. Dist. LEXIS 95143, at *2 (D. Kan. Sept. 25, 2006) (internal citations omitted). It remains, however, the burden of the party seeking the award to show that both the hourly rate and the number of hours expended is reasonable under the circumstances. Hensley v. Eckerhart, 461 U.S. 424, 433-34 (1983); see also Brooks, 2006 U.S. Dist. LEXIS 95143, at *5.
III. Discussion
Plaintiff seeks a total award of $5,134.13 in attorney fees, which represents 26.90 hours of work billed at an hourly rate of $190.86. Plaintiff asserts that this rate is below the market rate for the same kind and quality of legal services as performed in this case.
A. Hourly rates
In EAJA cases, the hourly rate for attorney's fees is required by statute to be based upon prevailing market rates for the same kind and quality of work, and is capped at $125 per hour:
The amount of fees awarded under this subsection shall be based upon prevailing market rates for the kind and quality of the services furnished, except that . . . (ii) attorney 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).
This court has previously summarized the fundamental procedure for determining the reasonableness of a fee award under the EAJA:
By its terms, this provision establishes a two-step approach for arriving at the appropriate hourly rate. First, the court must determine the prevailing market rate for similar services provided by lawyers "of reasonably comparable skill, experience, and reputation." The burden rests with the fee applicant to establish by evidence the prevailing market rate relevant in this case."Masenthin v. Barnhart, 2005 U.S. Dist. LEXIS 15916, at *4 (D. Kan. July 21, 2005) (internal citations omitted).
The court "is not required to award an hourly rate in excess of the statutory figure because of an increase in the cost of living, even where evidence of such is shown." Masenthin, 2005 U.S. Dist. LEXIS 15916, at *7 (citing Headlee v. Bowen, 869 F.2d 548, 551 (10th Cir.), cert. denied, 493 U.S. 979 (1989)). "Rather, such an award rests within the discretion of the court." Id. at *8. Courts in this district have approved hourly rates as high as $344.73. See Vaughn v. Astrue, 2008 U.S. Dist. LEXIS 71409 (D. Kan. Sept. 19, 2008). In most recent times, hourly rates have been between $185.00 and $293.00. See Chisolm v. Astrue, 2015 U.S. Dist. LEXIS 13599 (D. Kan. Feb. 5, 2015) and Glaze v. Colvin, 2015 U.S. Dist. LEXIS 91795 (D. Kan. July 15, 2015). The court therefore finds a departure from the statutory cap is justified in this case. Accordingly, plaintiff's request for an hourly rate of $190.86 is granted.
B. Expenditure of time
Plaintiff requests an award for 26.90 hours of work.
In awarding fees under the EAJA, courts have a special responsibility to ensure that taxpayers are required to reimburse prevailing parties for only those fees and expenses actually needed to achieve the favorable result. The Tenth Circuit recognizes that attorneys typically do not bill a client for every hour expended in litigation, and they should exercise billing judgment regarding the amount of hours actually billed. To show appropriate billing judgment, an attorney should make a good-faith effort to exclude those hours from the request that are excessive, redundant, or otherwise unnecessary. The Court has a corresponding obligation to exclude hours not reasonably expended from the calculation.Romero v. Colvin, 2014 U.S. Dist. LEXIS 94448, at *11 (D.N.M. Mar. 20, 2014) (internal quotations and citations omitted). That being said, courts in this district generally abide by the rule of thumb that "the typical EAJA fee application in social security cases is between 30 and 40 hours." Chisolm v. Astrue, 2015 U.S. Dist. LEXIS 13599, at *2 (D. Kan. Feb. 5, 2015).
The court has reviewed counsel's detailed Statement of Account (Dkt. 23-1) and finds that the amount of time documented was reasonably necessary to accomplish the tasks listed. Plaintiff shall therefore be awarded fees for 26.90 hours of work.
IT IS THEREFORE ORDERED this 5th day of November, 2015, that plaintiff's Motion for Attorney Fees (Dkt. 23) is hereby GRANTED, to the extent set forth above.
s/ J. Thomas Marten
J. THOMAS MARTEN, JUDGE