Opinion
Civil Action No. 99-0893-P-L
October 3, 2000
JUDGMENT
In accordance with the Order entered this date, it is hereby ORDERED, ADJUDGED, and DECREED that plaintiff be awarded a reasonable attorney's fee in the amount of $2,796.30 under the Equal Access to Justice Act, 28 U.S.C. § 2412 for legal services rendered (23.90 hours) by her attorney in this court at the market rate of $117.00 an hour.
ORDER MODIFYING AND ADOPTING THE REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE
After due and proper consideration of all portions of this file deemed relevant to the issues raised, and a de novo determination of those portions of the recommendation to which objection is made, the Report and Recommendation of the Magistrate Judge made under 28 U.S.C. § 636(b)(1)(B), and dated August 11, 1999 (doc. 23), is due to be adopted as modified.
The modifications are as follows:
1) At page 1, numbered ¶ 2, line 1, the file date of plaintiff's initial application for attorney's fees is corrected to reflect — July 5, 2000 (Doc. 17);
2) at page 2, numbered ¶ 3, line 2, the file date of the Commissioner's response to plaintiff's application is corrected to reflect — July 21, 2000;
3) at page 2, following numbered ¶ 4, insert the following — 5. Defendant filed a Reply there to on July 28, 2000 (Doc. 22);
4) at page 3, line 1, footnote number 2 is omitted;
5) at page 5, ¶ 2, line 1, the date "January 21, 2000," is corrected to reflect — January 24, 2000;
6) at page 5, ¶ 2, line 2, the date "January 24, 2000," is corrected to reflect — January 27, 2000; and
7) at page 5, ¶ 2, line 7, the dates "January 21, 2000, and January 24, 2000," are corrected to reflect — January 24, 2000, and January 27, 2000.
This court also writes to plaintiffs Objections to the Magistrate Judge's Report and Recommendation. The Magistrate Judge made three downward adjustments to the fee application. Plaintiff objects to all three.
First, the Magistrate Judge, in finding excessive the 3.25 total hours claimed on July 24-25, 2000, to review and respond to defendant's objections to the fee application, reduced the hours claimed to .5 hours. Plaintiff disagrees with the Magistrate Judge's assessment of the amount of time needed for the task, stating that "it would have been impossible to perform the task in .50 hours" (doc. 24, p. 4). Plaintiffs objection is overruled.
Second, the Magistrate Judge disallowed claims for 2.65 hours on January 24, and 27, 2000, which were determined to be expenses resulting from the breakup of counsel's firm and the reorganization of her legal practice. Plaintiff argues that this is not so, "rather the time claimed was time it took to ensure that items the Commissioner had failed to include in the transcript were part of the official record." (doc. 24, p. 3).
Plaintiff contends that the need to compare the official transcript with the attorney file "so extensively" on January 24, 2000, stemmed from the Commissioner failing to include many key documents in the official record. However, a comparison of two files to determine if each contained the same documents is not necessarily legal work; it constitutes clerical work. Further, with regard to the January 27, 2000 conference, plaintiff concedes that "the [it] would probably not have taken so long if everything was bright and cheery between the two firms, . . ." (doc. 24, p. 3). Plaintiffs objection is overruled.
Third, after finding the April 20, 2000 claim for .50 hours to review defendant's three page motion and memorandum requesting remand excessive, the Magistrate Judge recommended that the claim be reduced to .10 hours. Plaintiff argues the time was necessary "to review her memorandum to determine whether she agreed . . ." (doc. 24, p. 5).
In support of the argument, plaintiff directs the court's attention by way of illustration to another of counsel's cases wherein the Commissioner had inserted an unacceptable reason for remand which required a response (see doc. 21, Exhibit A-Motion to Reverse and Remand and Memorandum in Support of Plaintiffs Response to Defendant's Motion to Reverse and Remand). Plaintiff contends that in taking the time to thoroughly read opposing counsel's brief as well as all Court orders, she is fulfilling her professional and ethical obligation. Plaintiff argues that in the illustrative case, had she not read the opposing counsel's motion to remand carefully, an unacceptable issue would have been put before the Commissioner, i.e., a direction for the Administrative Law Judge to evaluate "a severe substance abuse/dependency impairment" which could have impacted the eventual outcome of the case (doc. 21, Ex.A).
However, the case sub judice and the illustrative case plaintiff's counsel presents are distinguishable. Herein, as noted by the Magistrate Judge, plaintiffs counsel was contacted by defendant prior to the filing of defendant's motion to remand and plaintiff had no objection. Moreover, as noted by the Magistrate Judge defendant's motion is less than three pages long (see doc. 13). Plaintiffs objection is overruled.
Finally, incorporated with plaintiffs Objections to the Report and Recommendation, plaintiffs counsel claims an additional 2.35 hours, specifically:
July 29, 2000 read defendant's reply to plaintiff's application for attorney fees .35 hrs.
August 15, 2000 read Magistrate's Report and Recommendation .40
draft/edit Objections to Magistrate's Report and Recommendation 1.60 Total 2.35 hrs.
(doc. 24, p. 5).
"Litigation expenses are compensable under the EAJA provided they are . . . necessary to the preparation of the [prevailing] party's case. . . . [E]xpenses of an attorney that are not incurred or expended solely or exclusively in connection with the case before the court, or which expenses the court finds to be unreasonable or unnecessary in the pending litigation, cannot be awarded under the EAJA . . ." Baker v. Apfel, 2000 WL 284215, 6 (S.D.ALA. (Feb. 23, 2000)) (citations and internal quotation marks omitted). The objections raised by plaintiff to the Magistrate Judge's Report and Recommendation are merely restatements of claims and contentions raised in her application for attorney's fees (docs. 17, 21). This court finds that the reductions and the reasons therefore set out by the Magistrate Judge are reasonable. The request for additional hours is DENIED.
Accordingly, with these modifications and after due and proper consideration of all pleadings in this file, and a de novo determination of those portions of the Report and Recommendation to which objection is made, it is ORDERED that the Report and Recommendation of the Magistrate Judge is hereby ADOPTED, as MODIFIED above, as the opinion of this court and that plaintiff be awarded a reasonable attorney's fee in the amount of $2,796.30 (23.90 hours x $117.00) under the Equal Access to Justice Act, 28 U.S.C. § 2412 for legal services rendered by her attorney in this court.