Opinion
Case No. 6:98-cv-651-Orl-22A
August 14, 2000
REPORT AND RECOMMENDATION
TO THE UNITED STATES DISTRICT COURT
This cause came on for consideration after an evidentiary hearing on the following motion and responses filed herein:
1) Plaintiffs Petition for Attorney Fees (Doc. No. 25, filed January 18, 2000);
2) Defendant's Opposition to Plaintiff's Petition for Attorney Fees Pursuant to 28 U.S.C. § 2412(d) (Doc. No. 31, filed March 31, 2000);
3) Reply to Defendant's Opposition to Plaintiffs Petition for Attorney Fees Pursuant to 28 U.S.C. § 2412(d) (Doc. No. 33, filed April 19, 2000);
4) Defendant's Notice of Supplemental Authority (Doc. No. 40, filed July 21, 2000).
This petition was referred to me for issuance of a report and recommendation. For the reasons stated herein, I recommend that the petition be granted.
I. PROCEDURAL HISTORY.
Linda R. Davis, through her attorneys, filed a complaint against Kenneth Apfel, the Commissioner of the Social Security Administration ("Commissioner"), challenging the decision to deny her application for social security disability benefits. The Court reversed the decision of the Commissioner and remanded the case for an award of benefits. (Doc. No. 23).
Thereafter, Davis timely sought an award of attorneys' fees and costs. The petition was supported by a Declaration of Robert W. Elton (Doc. No. 27), a Declaration and Schedule of Hours of Chantal J. Harrington (Doc. No. 28), and a Declaration and Schedule of Hours of Sarah H. Bohr (Doc. No. 29), each of whom served as attorneys for Davis. They sought, collectively, $3,057.84 in attorneys' fees and $150.00 in costs. (Doc. No. 25).
The Commissioner agreed that 22.9 hours of the time submitted by Elton, Bohr and Harrington was reasonable. He disputed 7.8 hours. He asserted that Bohrs time should be reduced by 1 hour, Harrington's time should be reduced by 4.8 hours and Elton's time should be reduced by 2 hours due to duplication of work. (Doc. No. 31).
I ordered the parties to confer in a good faith attempt to resolve the disputed issues. Because they were unable to resolve all the disputes, I conducted an evidentiary hearing on August 11, 2000.
II. STANDARD OF REVIEW.
Fee awards in social security cases are governed by the Equal Access to Justice Act ("EAJA") 28 U.S.C. § 2412. The United States Court of Appeals for the Eleventh Circuit has stated that a party seeking an award for fees "Incurred in either a civil action or an adversary agency adjudication is entitled to fees provided that 1) it is the prevailing party; 2) its application for fees is timely; 3) the position of the government was not substantially justified; and 4) no special circumstances make an award unjust." Pollgreen v. Morris, 911 F.2d 527, 532 (11th Cir. 1990) (citations omitted).
III. FINDINGS OF FACT AND ANALYSIS.
There is no dispute that Davis was the prevailing party or that her application for fees was timely. The United States also does not contend that its position was substantially justified or that special circumstances make an award of fees unjust. The only issue is the amount to be awarded.
The parties agree that the maximum allowable hourly rate payable to attorneys in this case under EAJA, with the appropriate cost-of-living adjustment, is $133.50. Before the hearing, the parties stipulated that the prevailing market rate for attorneys in Jacksonville, Florida who handle social security cases is $175 to $200 per hour. The declarations and testimony of Elton, Bohr and Harrington are sufficient to establish that based on their experience, in light of the stipulated prevailing market rate, each of them is entitled to be compensated at the maximum rate of $133.50 per hour. The parties also stipulated that the plaintiff incurred $150.00 as the filing fee in this case.
Elton, who is a board certified trial lawyer with thirty years' experience as an attorney, testified that he represented Davis in the initial proceedings before the Social Security Administration. Because Elton is not a specialist in social security disability cases, he retained Bohr and Harrington, who specialize in such cases, to assist him in representing Davis before the Social Security Administration ("SSA") Appeals Council and in this Court. Elton remained counsel of record. Elton spent 1 hour preparing the complaint. Because he was familiar with the proceedings before the SSA, and pursuant to his obligations under Federal Rule of Civil Procedure 11, Elton spent a total of 2 hours reviewing the brief drafted by Harrington to ensure that it was factually correct and that it complied with my briefing order. He suggested certain changes be made, which were incorporated by Harrington.
Chantal Harrington, who has eleven years' experience as an attorney and who has devoted her practice to social security disability cases since 1995, testified that she was responsible for preparing the memorandum of law filed in this Court in opposition to the Commissioners decision denying social security disability benefits to Davis. She testified that this case was more complex than usual, because it included impairments alleged to arise from connective tissue disease that might have been associated with breast implants. Harrington spent some time researching the medical literature on this issue to make a strategic decision how to approach this question. She also had to address the question of whether an Administrative Law Judge ("ALJ") could properly discount the opinion of a treating physician if the opinion was based on complaints by the patient that the ALJ found not to be credible. She spent a total of 17.3 hours preparing the initial brief and reviewing the responsive brief filed by the Commissioner. She did not include in this time hours spent preparing a reply brief, which was stricken by the Court because it was filed without authorization.
Sarah Bohr, a lawyer with twenty-two years' experience in social security disability litigation, testified that she was involved only in the preparation of the attorneys' fee petition in this case. Pursuant to Middle District of Florida Rule 3.01(g). she contacted the United States Attorneys' Office, where she was instructed to speak to a paralegal. The paralegal indicated that the defendant could not state whether he objected to or agreed to the fees requested until the petition was filed. Counsel for the Commissioner, who is an Assistant United States Attorney, confirmed that this was the practice of the United States Attorneys' Office. Accordingly, Bohr was required to prepare the petition as if all issues were contested. She requested that Harrington write the argument regarding whether the position of the Commissioner was substantially justified, because Harrington was most familiar with the substantive issues. Harrington testified that she spent .3 hours on that task and preparation of her declaration in support of the fee petition. Bohr spent 2.3 hours preparing the petition for attorneys' fees and her declaration in support of the petition. Bohr and Harrington testified that they made particular efforts not to duplicate labor in social security cases.
I advised counsel at the hearing that this procedure does not comply with Rule 3.01(g). Rule 3.01(g) requires counsel and unrepresented parties to confer, which I construe to mean speak to each other in person or by telephone, in a good faith attempt to resolve disputed issues, Petitions for attorneys' fees are not exempted from this conference requirement by the rule. While it may be permissible for an attorney's support staff to relay the message that the requested relief is not opposed, it is never proper for support staff to be delegated the task of discussing issues that the responding party may contest.
Elton spent some time preparing his declaration in support of the fee petition. He did not request reimbursement for that time.
At the evidentiary hearing, counsel for the Commissioner cross-examined Elton, Bohr and Harrington. Counsel for the Commissioner did not offer any evidence. She argued that Elton's time should not be awarded because there was no need for him to be involved; the matter had been contracted out to Harrington and Bohr. Otherwise, counsel for the Commissioner simply presented unsupported argument that SSA lawyers could have prepared the documents submitted by counsel for the plaintiff in less time.
I find that Elton properly remained as counsel of record in this case. Davis was his client and he was familiar with the initial administrative proceedings before the Commissioner. He fulfilled his obligation to his client to ensure that the factual statements in the brief were accurate, and his obligation to the Court under Federal Rule of Civil Procedure 11, when he reviewed and revised the initial memorandum of law before it was filed. I find that 3 hours is an extraordinarily reasonable amount of time for his efforts. Cf. Sandoval v. Apfel, 86 F. Supp.2d 601 (N.D. Tx. 2000) (approving fee award to counsel of record and to Sarah Bohr, who was retained to assist in the social security disability appeal).
There is no indication that there was any duplication of effort between Bohr and Harrington with respect to preparation of Davis' initial memorandum of law. The memorandum of law written by Harrington thoroughly discussed the record before the Commissioner, clearly presented the legal issues and cited a number of relevant legal authorities. As a result of Harrington's work, not only was the decision of the Commissioner reversed, but the Court ordered an award of benefits. I find that 17.3 hours is clearly a reasonable amount of time for her work. Cf. Hardy v. Callahan, No. 96-cv-257, 1997 WL 470355 at *9 (E.D. Tx. August 11, 1997) (finding that typical social security disability appeal requires between 30 and 40 hours).
There is also no indication that there was any duplication of effort among the attorneys in preparing the fee petition. Harrington addressed that portion of the argument with which she was most familiar, whether the Commissioners position was substantially justified, and Bohr prepared the remainder of the argument. Although attorneys' fee petitions are to some extent standard, .3 hours for Harrington's work and 2.3 hours for Bohr's work is exceptionally reasonable.
The Commissioner was given an opportunity to resolve the dispute about the amount of attorneys' fees to be paid before the hearing. I specifically warned the Commissioner in the hearing order that time spent litigating disputed attorneys' fees issues could be awarded to the plaintiff if she prevailed. (Doc. No. 35) (citing Commissioner v. Jean, 496 U.S. 154 (1990)). The Commissioner continued to contest the reasonableness of the hours worked by Davis' attorneys, even though he presented no evidence in support of his objections at the hearing. Under these circumstances, Davis is entitled to full compensation of all the time her attorneys spent litigating the attorneys' fees issue. The testimony established that, in addition to the time discussed above, Elton spent 4.5 hours to prepare for and attend the evidentiary hearing, Bohr spent 22.9 hours in additional briefing, conferences with defense counsel and preparing for and attending the hearing and Harrington spent 7.5 hours to prepare for and attend the hearing.
Bohr and Harrington traveled from Jacksonville. Elton traveled from Daytona Beach.
In summary, Elton worked 7.5 hours, Harrington worked 26.1 hours and Bohr worked 25.2 hours, resulting in total reasonable hours of 58.8 hours. Compare Dunn v. Shalala, No. 92 C 4090, 1995 WL 23116 (N.D. Ill. Jan. 19, 1995) (awarded 70 hours for memorandum of law and 17.4 hours for attorneys' fee litigation in social security disability case). At the hourly rate of $133.50, Davis is entitled to an award of $7,849.80.
The EAJA also authorizes the award of "costs" and "expenses." 28 U.S.C. § 2412 (a)(1) (d)(1)(A). It is undisputed that Davis incurred $150.00 in costs in the form of the filing fee. She is entitled to recover this amount.
IV. RECOMMENDATION.
For the reasons stated herein, I respectfully recommend that the Court GRANT the Plaintiffs Petition for Attorney Fees (Doc. No. 25) and award the plaintiff $ 7,849.80 in attorneys' fees and $150.00 in costs. I further recommend that the Court order the Clerk of Court to enter a judgment consistent with its order on this Report and Recommendation and, thereafter, to close the file.
Failure to file written objections to the proposed findings and recommendations contained in this report within eleven (11) days from the date of its filing shall bar an aggrieved party from attacking the factual findings on appeal.