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Harlan v. Colvin

United States District Court, W.D. North Carolina, Charlotte Division

April 23, 2014

DUSTIN M. HARLAN, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

ORDER

DAVID C. KEESLER, Magistrate Judge.

THIS MATTER IS BEFORE THE COURT on Plaintiff's "Petition For Attorney's Fees And Costs" (Document No. 26). This case has been referred to the undersigned Magistrate Judge pursuant to 28 U.S.C. §636(b)(1)(B) and is now ripe for disposition. Having carefully considered the motion, the record and applicable authority, the undersigned will grant the motion, with modification.

BACKGROUND

Plaintiff's "Complaint" seeking a reversal of the ALJ's determination was filed in this Court on July 20, 2012. (Document No. 1). "Plaintiff's Motion For Summary Judgment" (Document No. 17) and "Plaintiff's Memorandum In Support Of Her Motion For Summary Judgment" (Document No. 18) were filed February 25, 2013; and the "Commissioner's Motion For Summary Judgment" (Document No. 21) and "Memorandum In Support Of The Commissioner's Motion For Summary Judgment" (Document No. 22) were filed May 24, 2013.

On November 21, 2013, the undersigned issued a "Memorandum And Recommendation" (Document No. 23) recommending that this matter be remanded for a new hearing and further consideration. Neither party filed an objection to the "Memorandum And Recommendation." The Honorable Graham C. Mullen affirmed the "Memorandum And Recommendation" on December 19, 2013. (Document No. 24).

The pending "Petition For Attorney's Fees And Costs" (Document No. 26) was filed on March 19, 2014. "Defendant's Opposition To Plaintiff's Petition For Attorney's Fees Under The Equal Access To Justice Act" (Document No. 28) was filed on April 7, 2014; and "Plaintiff's Reply..." (Document No. 29) was filed on April 16, 2014.

DISCUSSION

Plaintiff now seeks an award of attorney's fees and costs pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412 (d) ("EAJA"). (Document No. 26). Specifically, Plaintiff's petition requests a total of $7, 530.00 for 38.8 hours of attorney time at $187 per hour, and 2.75 hours of paralegal time at $100 per hour. (Document No. 26, p.2; Document No. 26-1, pp.4-5).

The EAJA provides that:

... a court shall award to a prevailing party other than the United States fees and other expenses, in addition to any costs awarded pursuant to subsection (a), incurred by that party in any civil action (other than cases sounding in tort), including proceedings for judicial review of agency action, brought by or against the United States in any court having jurisdiction of that action, unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust....
The court, in its discretion, may reduce the amount to be awarded pursuant to this subsection, or deny an award, to the extent that the prevailing party during the course of the proceedings engaged in conduct which unduly and unreasonably protracted the final resolution of the matter in controversy.
... The amount of fees awarded under this subsection shall be based upon prevailing market rates for the kind and quality of the services furnished....

28 U.S.C. § 2412 (d).

Defendant "agrees that Plaintiff reasonably expended services prior to the grant of remand, and was thus the prevailing party within the meaning of the Act, " but argues that the number of hours charged "are excessive and warrant reduction." (Document No. 28, p.2). Defendant notes that the Supreme Court has directed that "district courts are to exclude from fee calculations hours that were not ...


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