Opinion
SA-23-CV-00159-OLG
03-15-2024
DAWN SUSANNE HOWELL, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
REPORT AND RECOMMENDATION
ELIZABETH S. ("BETSY") CHESTNEY, UNITED STATES MAGISTRATE JUDGE
To the Honorable United States District Judge Garcia:
This Report and Recommendation concerns Plaintiff's Motion for Attorney's Fees Pursuant to the Equal Access to Justice Act [#16]. This case was referred to the undersigned pursuant to Western District of Texas Local Rule CV-72 and Appendix C. The undersigned therefore has authority to enter this recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). For the reasons set forth below, it is recommended that Plaintiff's Motion [#16] be GRANTED.
I. BACKGROUND
On February 23, 2023, Plaintiff filed a complaint seeking judicial review of a final decision by the Commissioner of Social Security denying Plaintiff's application for Disability Insurance Benefits under Title II of the Social Security Act (“the Act”), 42 U.S.C. § 401 et seq. (Complaint [#3], at ¶ 1); (Pl.'s Op. Br. [#9], at 1.)
On October 23, 2023, this Court granted the Commissioner's Unopposed Motion to Reverse with Remand and Enter Judgment and Incorporated Memorandum, and reversed and remanded the case for further action by the Commissioner pursuant to the fourth sentence of 42 U.S.C. § 405(g). (Def.'s Unopposed Mot. to Reverse With Remand and Enter Judgment and Incorporated Mem. [#13]); (Order [#14].)
Plaintiff now moves for an award of $19,296.12 under the Equal Access to Justice Act (“the EAJA”), 28 U.S.C. § 2412, reflecting 74.8 attorney hours at a rate of $243.13 per hour and 11.1 paralegal hours at a rate of $100 per hour. (Att'y's Affirmation in Supp. of Mot. for EAJA Fees [#17], at 2.) The Commissioner opposes the motion and seeks to reduce the number of attorney and paralegal hours to be compensated. (Def.'s Resp. to Pl.'s Mot. for Atty's Fees Pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412 (“Def.'s Resp.”) [#18], at 1.) Plaintiff also seeks to be compensated for time spent preparing a reply to the Commissioner's objection to her motion, in the amount of $1,021.15, bringing the total amount of fees sought to $20,317.27. (Pl.'s Reply [#19], at 7.) For the reasons set forth below, the undersigned recommends GRANTING Plaintiff's Motion [#16], and additionally awarding fees for the reply.
II. GOVERNING LAW
The EAJA provides that a court “shall award to a prevailing party . . . fees and other expenses . . . 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); Baker v. Bowen, 839 F.2d 1075, 1079-80 (5th Cir. 1988) (noting the EAJA “provides a mandatory attorney's fee award for a prevailing party that meets certain financial eligibility requirements”). The Commissioner bears the burden of showing that the statutory exceptions indicate an award would be inappropriate. Martin v. Heckler, 754 F.2d 1262, 1264 (5th Cir. 1985).
An award of attorney's fees under the EAJA must also be “reasonable.” 28 U.S.C. § 2412(b). As the fee applicant, Plaintiff has the burden of demonstrating the reasonableness of the number of hours expended on the prevailing claim. See Von Clark v. Butler, 916 F.2d 255, 259 (5th Cir. 1990); Leroy v. City of Hous., 831 F.2d 576, 586 (5th Cir. 1987). A fee applicant is expected to exercise “billing judgment” with respect to hours worked and to present evidence supporting the hours worked and rates claimed. Hensley v. Eckerhart, 461 U.S. 424, 437 (1983).
In determining the reasonableness of attorney's fees under the EAJA, the Fifth Circuit has adopted the twelve-factor “lodestar” test enunciated in Johnson v. Ga. Highway Exp., Inc., 488 F.2d 714, 717 (5th Cir. 1974). See Hall v. Shalala, 50 F.3d 367, 369 (5th Cir. 1995); see also Sanders v. Barnhart, No. 04-10600, 2005 WL 2285403, at *2 (5th Cir. Sept. 19, 2005) (per curiam) (“In determining the reasonableness of [EAJA] fees, this Court has adopted the 12-factor ‘lodestar' test enunciated in Johnson v. Georgia Highway Express, Inc., 288 F.2d 714 (5th Cir. 1974).”). The Fifth Circuit, however, has clarified that “it is not necessary for a district court to examine each of the factors independently if it is apparent that the court has arrived at a just compensation based upon appropriate standards.” Sanders, 2005 WL 2285403, at *2. “The fee thus determined cannot exceed the statutory cap, except as expressly permitted by the EAJA.” Sandoval v. Apfel, 86 F.Supp.2d 601, 616 (N.D. Tex. 2000).
The district court has broad discretion in setting the appropriate award of attorney's fees, and, on appeal, the court of appeals reviews the court's award of attorney's fees for abuse of discretion and the supporting factual findings for clear error. See Watkins v. Fordice, 7 F.3d 453, 457 (5th Cir. 1993) (citing Von Clark, 916 F.2d at 258).
III. ANALYSIS
On October 23, 2023, this Court reversed and remanded the case for further action by the Commissioner pursuant to the fourth sentence of 42 U.S.C. § 405(g). (Order [#14], at 1.) The Fifth Circuit has held that a party who obtains a remand pursuant to the fourth sentence of § 405(g) qualifies as a “prevailing party” for purposes of attorney's fees under the EAJA. Breaux v. U.S. Dep't of Health & Human Servs., 20 F.3d 1324, 1325 (5th Cir. 1994) (per curiam) (citing Shalala v. Schaefer, 509 U.S. 292, 301-02 (1993)). It follows that Plaintiff is the “prevailing party” in this case for EAJA purposes, and is, therefore, entitled to an award of attorney's fees under the EAJA. The Commissioner disputes the reasonableness of the fee request based on the hours not the rates.
Rates. The Commissioner does not dispute that the hourly rate for either attorneys or paralegals-$243.13 and $100 per hour respectively-is reasonable. (Def.'s Resp. [#18], at 1.) The EAJA provides that attorney's fees “shall be based upon prevailing market rates for the kind and quality of the services furnished,” but “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.” § 2412(d)(2)(A). Plaintiff's rate exceeds the EAJA's presumptive statutory cap of $125 per hour. However, the EAJA permits cost-of-living adjustments to the attorney's hourly rate. See Hall v. Shalala, 50 F.3d 367, 368-69 (5th Cir. 1995). The requested hourly rate of $243.13 is reasonable because it is consistent with the increase in the consumer price index for the San Antonio area. Moreover, as noted, the Commissioner does not dispute that such a rate is reasonable.
Southwest Information Office, U.S. Bureau of Labor Statistics, https://www.bls.gov/regions/southwest/txsanantoniomsa.htm, last visited March 14, 2024 (categorizing the Consumer Price Index data for San Antonio as that of the “South Region,” consistent with Plaintiff's proffered data); (Ex. B-CPI Table [#6-2]).
Paralegal work is also reimbursable under the EAJA at prevailing market rates. Richlin Sec. Serv. Co. v. Chertoff, 553 U.S. 571, 590 (2008). The parties do not dispute the proposed rate of $100 per hour for paralegal work, and this Court has previously awarded EAJA fees at that rate. See, e.g. McCullough v. Saul, SA-18-CV-00128-ESC, 2019 WL 2774336 (W.D. Tex. July 2, 2019); Martin v. Saul, SA-19-CV-00898-ESC, 2020 WL 13490287 (W.D. Tex. June 5, 2020). Therefore, the undersigned finds both the attorney and paralegal rates reasonable.
Hours. The Commissioner contends that Plaintiffs attorney and paralegal hours are excessive. The Commissioner recommends reducing the attorney hours to 35 (from 74.8) and paralegal hours to 10 (from 11.1). (Def.'s Resp. [#18], at 1.)
Considering the size of the record, the fact-intensive nature of this case, and the results Plaintiff's counsel achieved, the undersigned disagrees that the hours worked on the appeal are excessive and therefore recommends granting the EAJA application. The undersigned additionally recommends granting Plaintiffs' request for fees for time spent working on the EAJA fee application itself, in the amount of $1,021.15, which reflects 4.2 attorney hours worked at a rate of $243.13 per hour. (Pl.'s Reply [#19], at 7-9.) The undersigned therefore recommends the total award should be $20,317.27. Id.
In support of its opposition, the Commissioner cites cases such as Hayes v. Sec'y of Health & Human Servs., 923 F.2d 418 (6th Cir. 1990) and Patterson v. Apfel, 99 F.Supp.2d 1212 (C.D. Cal. 2000), for the proposition that the average social security case takes about twenty to forty hours. Both are outside of this Circuit, and, the Ninth Circuit has held that it is an abuse of discretion to “apply a de facto policy limiting social security claimants to twenty to forty hours of attorney time in ‘routine' cases.” Costa v. Commissioner of Soc. Sec. Admin., 690 F.3d 1132, 1136 (9th Cir. 2012). Additionally, since the time of Hayes and Patterson, the average transcript size has increased from four to five hundred pages to eight hundred pages. See DeAnna T v. Kijakazi, No. 20-cv-576, 2022 WL 406658, at *4 (D. Minn. Feb. 10, 2022). Even if the average time spent on social security cases remains the same, the transcript in this case was uniquely large: 5,768 pages. The time records reflect that the bulk of Plaintiff's counsel's time (55.5 hours) was spent reviewing the record. Although Plaintiff's attorney could perhaps have been more efficient, it is not unreasonable to have spent a considerable amount of time reviewing a record of that size. Additionally, the plaintiff's opening brief appears to be fact intensive and includes citations that span the entire record, indicating a close review of the record was necessary.
CM/ECF data reflects the record was 5,768 pages.
Reviewing the attorney time records additionally reveals that a senior attorney wrote off some of his time, which additionally helps offset any inefficiency. Plaintiff's attorneys also received a favorable outcome for Plaintiff given that after Plaintiff filed her opening brief, the Commissioner filed an unopposed motion to remand the case to the Social Security Administration. (Def.'s Unopposed Mot. to Reverse With Remand and Enter Judgment and Incorporated Mem. [#13].) For these reasons, the undersigned finds the attorney hours worked on the case are reasonable.
The undersigned also finds the paralegal hours worked on the case are reasonable. The Commissioner took issue with a paralegal entry reflecting 6 hours worked on combining, OCR'ing, and live bookmarking the transcript. As Plaintiff explains, the transcript was filed in 10 separate docket entries and was 5,768 pages. The undersigned agrees that it could take a paralegal that amount of time to prepare a transcript of that size to be useful to attorneys, and taking time to do so up front likely saved attorney time. For these reasons, the undersigned finds that both the attorney and paralegal hours expended on this case are reasonable.
An EAJA fee award covers all phases of litigation. I.N.S. v. Jean, 496 U.S. 154, 166 (1990) (“The purpose and legislative history of the statute reinforce our conclusion that Congress intended the EAJA to cover all phases of successful civil litigation addressed by the statute.”). The plaintiff's total 4.2 hours spent on preparing the reply to the Commissioner's response in opposition is reasonable, and therefore, the undersigned recommends granting an additional award of $1,021.15 which represents 4.2 hours of attorney time at a rate of $243.13.
IV. CONCLUSION & RECOMMENDATIONS
Having reviewed the motion and response thereto, the applicable legal authorities, and the entire record in this matter, the undersigned recommends GRANTING Plaintiff's Motion for Attorney's Fees Pursuant to the Equal Access to Justice Act [#16] and awarding Plaintiff fees in the amount of $20,317.27, reflecting 79 total attorney hours at a rate of $243.13 per hour and 11.1 paralegal hours at a rate of $100 per hour. The undersigned further recommends that the District Court enter the following orders: (1) that Defendant pay the Plaintiff $20,317.27, and that such payment be made payable to Plaintiff and mailed to Plaintiff's counsel at his address of record; (2) that this payment by Defendant bars any and all claims further Plaintiff may have relating to EAJA fees and expenses in connection with this action; and (3) that Defendant's payment of this amount is without prejudice to Plaintiff's right to seek attorney fees under section 206(b) of the Social Security Act, 42 U.S.C. § 406(b), subject to the offset provisions of the EAJA.
This is so long as Plaintiff has no debt registered with the Department of Treasury that would otherwise be offset by such a payment. See Astrue v. Ratliff, 560 U.S. 586 (2010). Plaintiff signed a wavier agreeing to waive direct payment of the EAJA fees and assigned said fees to be paid directly to her attorney. (Affirmation and Waiver of Direct Payment of EAJA Fees [#17-1], at 2.)
VI. Instructions for Service and Notice of Right to Object/Appeal
The United States District Clerk shall serve a copy of this report and recommendation on all parties by either (1) electronic transmittal to all parties represented by attorneys registered as a “filing user” with the clerk of court, or (2) by mailing a copy to those not registered by certified mail, return receipt requested. Written objections to this report and recommendation must be filed within fourteen (14) days after being served with a copy of same, unless this time period is modified by the district court. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b). The party shall file the objections with the clerk of the court and serve the objections on all other parties. A party filing objections must specifically identify those findings, conclusions or recommendations to which objections are being made and the basis for such objections; the district court need not consider frivolous, conclusive or general objections. A party's failure to file written objections to the proposed findings, conclusions and recommendations contained in this report shall bar the party from a de novo determination by the district court. Thomas v. Arn, 474 U.S. 140, 149-52 (1985); Acuna v. Brown & Root, Inc., 200 F.3d 335, 340 (5th Cir. 2000). Additionally, failure to file timely written objections to the proposed findings, conclusions and recommendations contained in this report and recommendation shall bar the aggrieved 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. Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).