Opinion
Case No. 1:22-cv-848
2023-08-31
Andrea MARTIN, Plaintiff, v. Kilolo KIJAKAZI, Acting Commissioner of Social Security, Defendant.
John Osborne Goss, Goss, Meier & Fentress, Norfolk, VA, for Plaintiff. Yuri Fuchs, United States Attorney's Office, Alexandria, VA, for Defendant.
John Osborne Goss, Goss, Meier & Fentress, Norfolk, VA, for Plaintiff. Yuri Fuchs, United States Attorney's Office, Alexandria, VA, for Defendant. ORDER T. S. Ellis, III, United States District Judge
This matter is before the Court on Plaintiff Andrea Martin's motion for attorney's fees and costs pursuant to the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412. For the reasons stated herein, Plaintiff's Motion will be GRANTED IN PART and DENIED IN PART.
I.
Plaintiff brought this action challenging an unfavorable ruling by the Commissioner of Social Security on her application for disability benefits. The parties filed a consent motion to remand the case to the Commissioner, which was granted. See Order Granting Defendant's Consent Motion to Remand (Dkt. 16). Plaintiff then filed a motion for attorney's fees. See Plaintiff's Motion for Attorney's Fees and Costs Pursuant to the Equal Access to Justice Act (Dkt. 19). Plaintiff requests $15,028.34 in fees, expenses, and costs, representing 63.8 hours of attorney time at an hourly rate of $232.67 and 2.3 hours of paralegal time at an hourly rate of $80.00, plus $19.71 in expenses and $402.00 in costs. Defendant does not oppose an award of attorney's fees or costs and expenses and does not contest the hourly attorney rate, but does dispute the time and total amount of the requested award. Defendant suggests an award of attorney's fees in an amount between $8,690.86 and $9,621.54.
Plaintiff initially requested attorney's fees in the amount of $14,248.26. In her reply to Defendant's opposition, Plaintiff included a request for an additional $1,140.08 in fees reflecting 4.9 hours of attorney work in preparing the reply, less $360.00 reflecting 4.5 hours of paralegal time that plaintiff agreed should not have been included in the initial request. Plaintiff's EAJA fees may properly include the costs associated with preparing her fee application. See Nken v. Holder, 385 F. App'x 299, 303 (4th Cir. 2010) (awarding fees for preparing application for fees). This includes the reasonable costs of filing a reply because "the EAJA—like other fee-shifting statutes—favors treating a case as an inclusive whole" and limiting recovery would undermine "the specific purposes of the EAJA." Comm'r, I.N.S. v. Jean, 496 U.S. 154, 162-63, 110 S.Ct. 2316, 110 L.Ed.2d 134 (1990).
II.
Section 204(d) of the Equal Access to Justice Act, codified at 28 U.S.C. § 2412(d), provides that "a court shall award to a prevailing party . . . fees and other expenses . . . in any civil action . . . brought by or against the United States . . . unless the court finds that the position of the United States was substantially justified." To determine whether the Commissioner of Social Security was "substantially justified" in denying social security benefits—and thus whether an award of attorney's fees under the EAJA is warranted—courts ask whether there was arguably substantial evidence to support the Commissioner's position. See Anderson v. Heckler, 756 F.2d 1011, 1013 (4th Cir. 1985). Here, the parties agree that an award of attorney's fees is warranted, and thus that the Commissioner's position was not substantially justified.
To qualify for an award, the prevailing party must also submit a fee application and itemized statement within thirty days of final judgment. See 28 U.S.C. § 2412(d)(1)(B); Crawford v. Sullivan, 935 F.2d 655, 656 (4th Cir. 1991). A final judgment is one that is "final and not appealable," 28 U.S.C. § 2412(d)(2)(G), and that "terminates the civil action for which EAJA fees may be received." Melkonyan v. Sullivan, 501 U.S. 89, 96, 111 S.Ct. 2157, 115 L.Ed.2d 78 (1991). The Supreme Court has held that § 2412(d)(1)(B) "does not concern the federal courts' 'subject matter jurisdiction' " but "relates only to post-judgment proceedings auxiliary to cases already within the court's adjudicatory authority." Scarborough v. Principi, 541 U.S. 401, 413-14, 124 S.Ct. 1856, 158 L.Ed.2d 674 (2004). When the United States is a party to a case, a challenged order may be appealed within sixty days of its entry. See 28 U.S.C. § 2107(b). The thirty-day clock of the EAJA therefore does not begin until after the conclusion of the sixty-day time in which to appeal, when the judgment becomes "final." See Shalala v. Schaefer, 509 U.S. 292, 302-03, 113 S.Ct. 2625, 125 L.Ed.2d 239 (1993).
Defendant's consent motion to remand was granted on December 12, 2022. See Order Granting Defendant's Consent Motion to Remand (Dkt. 16). Judgment was entered in this case on January 26, 2023. See Judgment Order (Dkt. 18). Plaintiff moved for attorney's fees on March 10, 2023, forty-three days after the entry of judgment. See Plaintiff's Motion for Attorney's Fees and Costs Pursuant to the Equal Access to Justice Act (Dkt. 19). At that time, the decision was still appealable and therefore not "final" for purposes of § 2412(d)(2)(G). When a party submits a premature EAJA petition, courts have either dismissed the petition without prejudice, see White Buffalo Constr., Inc. v. United States, 101 Fed.Cl. 1, 23 (2011), vacated on other grounds, 546 F. App'x 952 (Fed. Cir. 2013), or deemed the petition to have been subsequently filed once the thirty-day window begins. See Brewer v. Am. Battle Monuments Comm'n, 814 F.2d 1564, 1567-69 (Fed. Cir. 1987). The legislative history of the EAJA further indicates that Congress intended to allow premature fee petitions to be considered on the merits to avoid an "overly technical approach." H.R.Rep. No. 99-120, 99th Cong., 1st Sess. 18 n.26, reprinted in 1985 U.S.C.C.A.N. 132, 146 n.26 ("Fee petitions may be filed before a 'final judgment.' If the court determines that an award of interim fees is inappropriate the petition should be treated as if it were filed during the thirty-day period following the final decision."). Defendant did not raise the timeliness of Plaintiff's Motion in its Response. Because Section 2412(d) is merely a claims processing rule, it is appropriate to consider the petition for attorney's fees to have become timely after the time for appeal closed, on March 27, 2023. See Scarborough, 541 U.S. at 413-14, 124 S.Ct. 1856.
The award of "fees and other expenses" must be "reasonable." 28 U.S.C. § 2412(d)(2)(A)(ii). Reasonableness relates to the rate of compensation and the total time charged. Hyatt v. Barnhart, 315 F.3d 239, 248 (4th Cir. 2002). A prevailing party is entitled to compensation only for the reasonable time expended in the litigation, not to all time billed. See Hensley v. Eckerhart, 461 U.S. 424, 436-37, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983); Hyatt, 315 F.3d at 253-54. The party seeking an award of fees "bears the burden of establishing entitlement to an award and documenting the appropriate hours expended and hourly rates." Hensley, 461 U.S. at 437, 103 S.Ct. 1933. Counsel must also exercise "billing judgment" in the hours worked. Id. at 433-34, 103 S.Ct. 1933. The district court possess "substantial discretion in fixing the amount of an EAJA award" to ensure its reasonableness. Hyatt, 315 F.3d at 254 (quoting INS v. Jean, 496 U.S. 154, 163, 110 S.Ct. 2316, 110 L.Ed.2d 134 (1990)).
To determine a reasonable fee, the Fourth Circuit has directed district courts to (i) calculate the lodestar figure, which is determined by multiplying the "reasonable hourly rate" by the "hours reasonably expended" in light of the factors enumerated in Barber v. Kimbrell's, Inc., 577 F.2d 216 (4th Cir. 1978) and Johnson v. Ga. Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974); (ii) subtract fees for hours spent on unsuccessful claims unrelated to successful ones; and (iii) award some percentage of the remaining amount, depending on the degree of success achieved. Grissom v. Mills Corp., 549 F.3d 313, 320-21 (4th Cir. 2008). The lodestar figure is presumptively reasonable and may only be adjusted "in those rare circumstances in which the lodestar does not adequately take into account a factor that may properly be considered in determining a reasonable fee." Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 554, 130 S.Ct. 1662, 176 L.Ed.2d 494 (2010). The calculation of the lodestar is appropriately guided by the Johnson/Barber factors. After the lodestar is calculated, the district court must consider whether the lodestar reflects all the Johnson/Barber factors, but may adjust the lodestar based only on the Johnson/Barber factors that are not accounted for in the lodestar figure. Any adjustment to the lodestar must be supported by a "objective and reviewable basis[.]" Id. at 558, 130 S.Ct. 1662. With these principles in mind, analysis appropriately proceeds to the determination of a reasonable attorney's fee in this case.
These factors are: (i) the time and labor required; (ii) the novelty and difficulty of the questions; (iii) the skill requisite to perform the legal service properly; (iv) the preclusion of other employment by the attorney due to acceptance of the case; (v) the customary fee for such services; (vi) whether the fee is fixed or contingent; (vii) time limitations imposed by the client or the representation, (viii) the amount involved and the results obtained; (ix) the experience, reputation, and ability of the attorneys; (x) the "undesirability" of the case; (xi) the nature and length of the professional relationship with the client; and (xii) awards in similar cases. See Johnson, 488 F.2d at 717-19.
III.
A.
The starting point in the lodestar analysis is the reasonableness of the hourly rates claimed in Plaintiff's fee petition. The EAJA requires courts to award fees and other expenses based on the prevailing market rate, subject to a statutory cap of $125.00 per hour that may be adjusted to reflect increases in the cost of living. 28 U.S.C. § 2412(d)(2)(A)(ii). Plaintiff seeks an hourly attorney fee of $232.67, reflecting an upward adjustment in the cost of living since 1996, when the statutory cap was last set, using the Consumer Price Index ("CPI"). The Fourth Circuit has previously held that the CPI "is the appropriate measure by which to calculate a cost of living enhancement to a statutory fee." Sullivan v. Sullivan, 958 F.2d 574, 574 n.1 (4th Cir. 1992). Defendant does not contest the reasonableness of Plaintiff's proposed hourly attorney fee rate.
Plaintiff also seeks compensation for paralegal time a rate of $80.00 per hour. Defendant does not dispute the compensability of paralegal time in general or that $80.00 is an unreasonable fee per se. Cf. Hyatt, 315 F.3d at 255 ("fees for paralegal time may be recoverable under the EAJA"). Instead, Defendant contends that, absent information on the qualifications of Plaintiff's paralegals, there is no basis for determining whether the claimed rate of $80.00 per hour is reasonable. Defendant raises this argument in a two-sentence footnote and provides no authority requiring proof of staff qualification as a condition of recovery. In any event, Defendant's objection is unpersuasive. Section 2412(d)(1)(B) only requires a prevailing party to include an "itemized statement" listing "the actual time expended and the rate at which fees . . . were computed." While perhaps helpful, the credentials of billing staff are not required. The requested $80.00 rate is less than the statutory cap of $125.00. See id. at § 2412(d)(2)(A)(ii). And courts have routinely upheld similar awards for otherwise recoverable paralegal time. See Alexander S. v. Boyd, 113 F.3d 1373, 1377 n.1 (4th Cir. 1997) (awarding $65/hour for paralegal time); Chapman v. Astrue, No. 2:08-cv-00040, 2009 WL 3764009, at *2 (W.D. Va. Nov. 9, 2009) ($75/hour for paralegal time); Fryar v. Saul, No. 7:19-cv-198, 2021 WL 769664, at *6 (E.D.N.C. Feb. 26, 2021) ($100/hour for paralegal time); Denton v. PennyMac Loan Servs., LLC, 252 F. Supp. 3d 504, 521-22 (E.D. Va. 2017) (concluding that $155/hour is a reasonable rate for an experienced paralegal). The requested $80.00 rate fits well within the amount awarded in similar circumstances.
The awards in Boyd and Chapman would be $115.00 and $108.00 when inflation-adjusted to today's value using the CPI.
B.
The total time expended on the matter must also be reasonable. Defendant challenges Plaintiff's billed hours on the grounds that (i) counsel seeks reimbursement for non-compensable tasks, (ii) certain time spent is excessive or unnecessary, and (iii) Plaintiff's overall fee is unreasonably excessive in light of awards in comparable cases. Each argument is addressed in turn.
1.
The prevailing party is entitled to fees only for those tasks which are "traditionally performed by an attorney and for which the attorney would customarily charge the client." Hyatt, 315 F.3d at 255. It is "well known" that this excludes "purely clerical activities," which "are not compensable as EAJA attorney fees" Apr. J. v. Kijakazi, No. 21-cv-1584, 2022 WL 4017381, at *2 (D. Md. Sept. 2, 2022); Abusamhadaneh v. Taylor, No. 1:11-cv-939, 2013 WL 193778, at *38 (E.D. Va. Jan. 17, 2013); accord Missouri v. Jenkins, 491 U.S. 274, 288 n.10, 109 S.Ct. 2463, 105 L.Ed.2d 229 (1989) (holding that "purely clerical" tasks cannot be billed under fee shifting statutes "regardless of who performs them"). Defendant challenges five time-entries as reflecting non-compensable clerical work, four of which remain in dispute: (i) 0.3 hours of attorney time related to drafting of the complaint and other documents; (ii) 0.8 hours of paralegal time related to service of process; (iii) 0.4 hours of attorney time related to reviewing and filing of documents; and (iv) 1.0 hour of paralegal time related to client phone calls.
Defendant also challenged 4.5 hours of paralegal time related to reformatting of the administrative transcript. Plaintiff agreed that this time was improperly included in its request and reduced the requested fees by $360.00. The fifth challenge to Plaintiff's fees is therefore not at issue here.
Drafting the Complaint.
Plaintiff requests compensation for 0.3 hours of attorney time spent to "[d]raft complaint, civil cover sheet, proposed summons and USM-285s." Attorney's Affirmation in Support of Motion for EAJA Fees, Ex. B, at 1 (Dkt. 20-2) (hereinafter, "Timesheet"). The parties agree that time spent drafting the complaint is recoverable, but Defendant contends that the remaining items—the civil cover sheet, proposed summons, and USM-285s—are clerical in nature. Plaintiff does not dispute this characterization. Because Plaintiff grouped these tasks together, Defendant claims that the entire entry should be unrecoverable. But Plaintiff remains entitled to reasonable compensation for the time actually spent in preparing the complaint. The complaint here consisted of only three pages that required "limited factual information, incorporate[d] no legal work, and could be completed by administrative staff in a matter of minutes." April, 2022 WL 4017381, at *3 (quoting Sheridan v. Colvin, No. JKB-15-10, 2015 WL 5897735, at *2 (D. Md. Oct. 5, 2015)). Given the simple nature of the complaint, and the non-recoverability of Plaintiff's other itemized tasks, 0.1 hour is a reasonable measure of Plaintiff's time spent drafting the complaint.
Preparing and filing service.
Plaintiff requests compensation for 0.6 hours of paralegal time for "Federal Court-service of process-prepare S&C service packets to USAO, OGC, AG" and 0.2 hours of paralegal time to "[c]ombine and file proof of service via CM/ECF." Timesheet at 1. Defendant asserts that these are non-compensable clerical tasks, relying on Fryar, 2021 WL 769664, at *3. But the Fryar court only found that the total time spent reviewing routine documents, such as proof of service, was excessive in that case. The court accordingly reduced the total time awarded. Fryar did not hold that actions related to service-of-process are categorically non-compensable. Defendant's only other authority, Morse v. Republican Party of Va., similarly found that attorneys cannot be compensated at an attorney rate for tasks such as filing a motion—not that such tasks are noncompensable. 972 F. Supp. 355, 366 (W.D. Va. 1997). Indeed, other courts have awarded recovery for non-attorney time spent on similar tasks. See, e.g., Blevins v. Berryhill, No. 1:16-cv-00025, 2019 WL 2062542, at *2 (W.D. Va. Apr. 23, 2019), report and recommendation adopted, 2019 WL 2060938 (W.D. Va. May 9, 2019) (awarding 0.25 hours of non-attorney time to perfect service, 0.25 hours for receipt of service on the parties, and 0.25 hours to prepare and file completion of service with the court). Plaintiff may therefore recover the requested 0.8 hours of paralegal time.
Reviewing and filing initial case documents.
Plaintiff requests compensation for 0.1 hours of attorney time spent to "[r]eview initial case documents," 0.1 hours of attorney time spent to "[r]eview scheduling order, note tentative deadlines," 0.1 hours of attorney time spent to "[r]eview summons returned executed, record answer due date for monitoring," and 0.1 hours of attorney time to "[r]eview order granting motion for extension of time re: Plaintiff's brief." Timesheet at 1-2. Reviewing the executed summons is a non-compensable, clerical task. See Faircloth v. Colvin, No. 2:13-cv-156, 2014 WL 5488809 at *7 (E.D. Va. Oct. 29, 2014). Plaintiff points to Bohny v. Kijakazi, No. 2:20-cv-591, Dkt. 34 at 8 (E.D. Va. Jan. 12, 2022), as permitting 0.1 hours for reviewing an executed summons. See Plaintiff's Reply to Defendant's Opposition to Plaintiff's Motion for Attorney's Fees, Ex. A, at 8 (Dkt. 24-1). But the Bohny Court permitted no such thing. In that case, the magistrate judge's report and recommendation, which included an award of 0.1 hours for reviewing a summons, was never adopted by the district court. Instead, the parties in Bohny stipulated to a dollar figure for plaintiff's attorney's fees, thereby disposing of the question and mooting the magistrate judge's report. Consistent with Faircloth, Plaintiff's award is reduced by 0.1 hours.
Plaintiff's request also includes 0.1 hour to review an order granting an uncontested motion for an extension of time to file plaintiff's summary judgment brief. Plaintiff is not entitled to "payment for 6 minutes of attorney time spent reviewing a short consent motion several days after the motion was granted." Shecona W. v. Kijakazi, No. 21-cv-819, 2023 WL 195471, at *3 (D. Md. Jan. 17, 2023). The remaining charges reflect a reasonable amount of time for reviewing court documents. Plaintiff is accordingly awarded 0.2 hours for these entries.
Client telephone calls.
Plaintiff requests compensation for 0.4 hours of paralegal time on a client call to discuss "federal debt check, [and] explain[ ] EAJA;" 0.3 hours of paralegal time on a client call to discuss "IFP assessment;" and 0.3 hours of paralegal time on a client call to explain the remand process. Timesheet at 1-3. While the government need not pay for administrative matters related to the attorney-client relationship, see Role Models Am., Inc. v. Brownlee, 353 F.3d 962, 973 (D.C. Cir. 2004) (finding drafting a firm engagement letter to be non-compensable), explaining to a client her rights under the EAJA, her eligibility for in forma pauperis status, and the remand process should she prevail are all squarely substantive communications of the sort traditionally performed by an attorney. See Hyatt, 315 F.3d at 255. That plaintiff billed these tasks at a paralegal, rather than attorney, rate further supports their reasonableness. Plaintiff is thus entitled to full compensation for these entries.
2.
Defendant challenges three entries of time as unreasonable considering the relatively simple nature of the case: (i) 1.7 hours of attorney time spent reviewing and editing the summary judgment brief; (ii) 1.0 hour of attorney time spent preparing the EAJA motion; and (iii) 41.5 hours of attorney time spent reviewing the administrative record.
The Summary Judgment Brief
Plaintiff seeks compensation for four attorneys' time related to the summary judgment brief. Specifically, Plaintiff requests 0.5 hours of time for a "[p]reliminary review of transcript;" 0.5 hours of time to "[p]eer attorney review of draft brief [and] suggest edits;" 0.4 hours of time to "[i]mplement suggested edits, finalize draft brief, draft motion and waiver of oral argument, [and] send to local counsel for review;" and 0.3 hours of time by local counsel to "[r]eview draft brief, edits, finalize, and file Plaintiff's brief." Timesheet at 2-3. Defendant first argues that the need to retain local counsel was unrelated to the unjustified position taken by the Commissioner. See Hyatt, 315 F.3d at 254 (limiting liability to only those "fees and expenses fairly attributable to the unjustified positions taken by the SSA."). In her reply, however, Plaintiff clarifies that any firm time spent reviewing filings is reduced by the time spent by local counsel reviewing those same documents to avoid duplicative billing. Plaintiff's billing sheets appear to reflect this reduction. See Timesheet at 2 (reducing billed time to factor in review by local counsel). From the record, it appears that Defendant incurred no additional expense due to Plaintiff's choice of counsel.
Defendant also claims that the use of multiple attorneys to prepare the summary judgment brief resulted in duplicative work and unnecessary expense. The mere presence of multiple attorneys does not necessarily indicate duplicative work. See Rum Creek Coal Sales v. Caperton, 31 F.3d 169, 180 (4th Cir. 1994) (cautioning against use of multiple attorneys when "not justified by the contributions of each attorney" because it may lead to "unacceptable duplication") (emphasis added). Plaintiff's time entries show that each attorney performed distinct tasks: preliminarily reviewing the record, reviewing a draft of the brief, implementing feedback, and conducting a final check of the brief prior to filing for compliance with this District's local rules. Attorneys routinely rely on one another to review their work product. While there is always a risk of unjustified redundancy, Defendant provides no reason to infer that Plaintiff's counsel spent an unreasonable amount of time on the summary judgment motion. Indeed, the disputed sum—1.7 hours—equates to less than five minutes of review and edits per page of the twenty-one-page summary judgment brief. That is a reasonable time for Plaintiff's counsel to spend on revising and reviewing a brief.
The EAJA Motion
Plaintiff requests compensation for 0.5 hours of paralegal time for "EAJA preparation," 0.4 hours of attorney time to "[r]eview EAJA time slips, finalize EAJA narrative," and 0.1 hours of attorney time to "[r]eview, approve, and file EAJA motion." Timesheet at 3. Defendant argues that EAJA motions are a routine filing in social security cases, that Plaintiff's counsel has experience in filing such petitions, and that no more than 0.5 hours should be permitted for the motion. Plaintiff points to several decisions from other districts permitting similar times for preparing an EAJA petition. See Plaintiff's Reply to Defendant's Opposition to Plaintiff's Motion for Attorney's Fees, at 6-7 (Dkt. 24). Courts in this Circuit have reached differing results. Compare Williams v. Colvin, No. 2:13-cv-703, 2015 WL 403057, at *4 (E.D. Va. Jan. 7, 2015), report and recommendation adopted, 2015 WL 402997 (E.D. Va. Jan. 27, 2015) (finding 1.0 hour a reasonable measure of the time to draft a fee petition), with Bradford v. Colvin, No. WMN-14-2016, 2015 WL 5895795, at *4 (D. Md. Oct. 5, 2015) (holding 0.5 hours was a more reasonable approximation for the time required to prepare an EAJA petition). This largely reflects the fact that disputes over the time to prepare an EAJA petition are "fact specific" and must be decided "on a case-by-case-basis." Kyser v. Apfel, 81 F. Supp. 2d 645, 648 (W.D. Va. 2000). Plaintiffs submitted over fifty time-entries for fourteen timekeepers (five attorneys and nine paralegals). Moreover, half the disputed time was billed to paralegal staff at a lower rate than that billed for the attorneys. The total time spent reasonably reflects the time necessary to properly prepare the EAJA petition.
Review of the Administrative Record
Plaintiff seeks recovery for four time entries totaling 41.5 hours of attorney time related to review of the administrative record: 8.3 hours to "[b]egin review of certified administrative record, taking notes and organizing facts" and three entries of 8.3 hours, 8.2 hours, and 8.4 hours to "[c]ontinue reviewing CAR, taking notes and organizing facts." Timesheet at 2. Defendant first contends that the time entries are the same and thus provide insufficient justification for the time billed. See League of United Latin Am. Citizens v. Roscoe Indep. Sch. Dist., 119 F.3d 1228, 1233 (5th Cir. 1997) (warning that parties may have their fees reduced if fee applications "are too vague to permit the district court to determine whether the hours claimed were reasonably spent."); Coreen T. v. Comm'r, Soc. Sec., No. 19-cv-3372, 2022 WL 2789083, at *2 (D. Md. July 14, 2022). But the mere fact that certain descriptions are repetitive does not make the description vague or prohibit assessment of the reasonableness of the work. The time entries reflect that Plaintiff's attorney was reviewing the administrative record from the proceeding below. That the review of the over 4,000-page record spanned multiple days does not reflect vague or redundant work; rather, it indicates that the same task—review of the record—took a long time and warranted several, separate time entries. Attorneys need not describe the minutiae of their review of each part of the record for a court to have a sufficiently clear understanding of the task performed.
Defendant further argues that 41.5 hours is an unreasonably excessive time to spend reviewing the record. While acknowledging that the administrative record is "undeniabl[y] . . . substantially larger than most records filed with the Court in social security cases," Defendant asserts that the issues in dispute were narrow, that the regulations at issue are longstanding, that Plaintiff's counsel is an experienced litigator in the field, and that the lone brief filed in this case largely rested on "unremarkable legal principles." Defendant's Opposition to Plaintiff's EAJA Petition, at 11-12 (Dkt. 23). Plaintiff does not contest any of these points but notes that counsel must first review the entire record to determine that only a single issue is worth challenging. Both parties highlight several district court decisions—largely out of Circuit—granting or reducing comparable time requests for similarly sized administrative records.
The Fourth Circuit has directed that counsel is entitled to compensation only for reasonable time expended on the litigation, with the Johnson/Barber factors guiding what whether the time expended is reasonable. See Grissom, 549 F.3d at 320-21. While the length of the administrative record may properly be considered under factor one (time and labor required) to determine a reasonable fee, many of the other factors point in the other direction. As relevant here, factors two (the novelty and difficulty of the questions), three (the skill requisite to perform the legal service properly), five (the customary fee), and twelve (awards in similar cases) all weigh against Plaintiff. The issues raised by Plaintiff were neither novel nor difficult. Plaintiff filed one dispositive motion focused on the sole issue of Plaintiff's mental impairment. The dispute centered on a "standard issue[ ] in social-security cases" that required no particular skill above and beyond that of an ordinary attorney in the field. Powell v. Comm'r of Soc. Sec., 418 F. Supp. 3d 1068, 1075 (M.D. Fla. 2019). Plaintiff's dispositive motion was not challenged by Defendant, who shortly thereafter agreed to a consent motion to remand.
Courts in this circuit and others have also recognized that twenty to forty hours is a reasonable time to spend on a typical social security case. See, e.g., Faircloth, 2014 WL 5488809, at *7; Fryar, 2021 WL 769664, at *2; Coreen T., 2022 WL 2789083, at *2; Patterson v. Apfel, 99 F. Supp. 2d 1212, 1214 n.2 (C.D. Cal. 2000) (collecting cases). Indeed, many of the cases relied on by Plaintiff to justify counsel's prolonged review of the record similarly cite twenty to forty hours as an appropriate range. See Tillack v. Berryhill, No. 15-cv-6306, 2017 WL 3976308, at *1 (W.D.N.Y. Sept. 11, 2017); Diaz Sanjurjo v. Colvin, No. 1:14-cv-85, 2016 WL 1611122, at *2-3 (N.D.N.Y. Apr. 21, 2016). And while a "diligent attorney certainly must review the entire record," when the legal issues on appeal are limited and narrow, the size of the record alone appeal cannot justify even "a request near the top of this range." Frye v. Saul, No. 19-cv-03119, 2020 WL 5203788, at *2 (D. Colo. Sept. 1, 2020). Here, Plaintiff's fee of 41.5 hours simply to review the administrative record exceeds the top range of presumptive reasonableness for the entirety of a social security case. In total, Plaintiff seeks compensation for 63.8 hours of attorney time and 2.3 hours of paralegal time. Though the twenty to forty hours cited by other courts is not a per se rule, counsel's time far exceeds the typical range that courts across this country have found to be reasonable. That is a sign that Plaintiff's fees are unreasonably high. And while the record in this case may be larger than average, that factor, standing alone, cannot transform Plaintiff's unreasonable request into a reasonable one. A reduction of 22.6 hours is warranted, reflecting one minute of compensation per four pages of the record. Not every page of the record requires a thorough review by counsel, and many require no more than a cursory glance. This reduction still provides plaintiff 18.9 hours (more than two full billable days) to review the administrative record, and brings Plaintiff's request more in line with other, similar cases. See, e.g., Powell, 418 F. Supp. 3d at 1074-75 (awarding 17.6 hours to review a 5,300-page administrative record); Diaz Sanjurjo, 2016 WL 1611122, at *2-3 (N.D.N.Y. Apr. 21, 2016) (finding a voluminous record could justify a "slight" upward departure from the twenty to forty-hour range).
3.
In calculating the lodestar figure, a court must also consider "attorneys' fees awards in similar cases." Grissom, 549 F.3d at 321 (quoting Spell v. McDaniel, 824 F.2d 1380, 1402 n.18 (4th Cir. 1987)). Defendant states that the average EAJA fee in the Richmond division in the prior two years was $4,604.53, though Defendant lacks similar data from the Alexandria division. See Defendant's Opposition to Plaintiff's EAJA Petition, at 13 & n.8 (Dkt. 23). Defendant further claims that the total time sought by Plaintiff is "the highest total amount of hours ever sought in any similar case in this Circuit." Id. at 13-14. Plaintiff's only response is to fall back on the volume of the record in this case. But as already explained, the size of the record alone cannot justify such a substantial upward departure, particularly in light of the otherwise unremarkable nature of this case.
The reductions in time already made—0.2 hours less for preparing the complaint, 0.2 hours less for reviewing and filing the initial case documents, and 22.6 hours less to review the administrative record—leave a total attorney time of 40.8 hours and paralegal time of 2.3 hours. Though slightly above the typical range for routine social security cases, the length of the record in this case justifies counsel's somewhat greater time. And, as reduced, Plaintiff's request is in line with awards in similar cases. See Johnson v. Saul, No. 5:18-cv-00152, 2020 WL 6065308, at *2 (W.D.N.C. Oct. 14, 2020) (noting that "one of the highest fee awards in this circuit" involved an "administrative record exceed[ing] 1,000 pages" justifying "46.3 hours of compensable work"). Plaintiff is therefore awarded $10,098.65, reflecting the time, rate, costs, and expenses listed in the table below:
| TIME | RATE | TOTAL | |
|---|---|---|---|
| ATTORNEY | 40.8 hours | $232.67 | $9,492.94 |
| PARALEGAL | 2.3 hours | $80.00 | $184.00 |
| EXPENSES & COSTS | $19.71 (expenses) + $402.00 (costs) | $421.71 | |
| $10,098.65 | |||
Accordingly,
It is hereby ORDERED that Plaintiff's Motion for Attorney's Fees and Costs Pursuant to the Equal Access to Justice Act (Dkt. 19) is GRANTED IN PART and DENIED IN PART. Plaintiff is awarded attorney's fees and costs in the amount of $10,098.65, which consists of: (i) $9,676,94 in fees, (ii) $19.71 in expenses, and (iii) $402.00 in costs.
It is further ORDERED that defendant remit $9,676.94 in attorney's fees by check to Plaintiff's counsel's business address: 735 Newtown Road, Ste. 100, Norfolk, VA 23502.
It is further ORDERED that defendant remit $421.17 in costs and expenses by electronic funds transfer to Plaintiff's counsel's client account.
It is further ORDERED that Defendant determine if Plaintiff owes any qualifying, preexisting debts to the government. If such a debt(s) exists, defendant shall reduce the awarded attorney's fees and costs in this Order to the extent necessary to satisfy such debt(s).