United States District Court, W.D. North Carolina
STACEY L. WHITTED, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
Richard L. Voorhees United States District Judge.
MATTER IS BEFORE THE COURT on Plaintiff's Motion
for Attorney's Fees under the Equal Access to Justice Act
(“EAJA”), 28 U.S.C. § 2412(d) (the
“Motion”). (Doc. 14). For the reasons that
follow, Plaintiff's Motion (Doc. 14) is GRANTED
IN PART and DENIED IN PART.
EAJA allows fee reimbursement to a prevailing party only for
“reasonable fees and expenses.” 28 U.S.C. §
2412(b). Under the EAJA, “the district court must
undertake the ‘task of determining what fee is
reasonable'” in light of the circumstances
surrounding the particular case. Hyatt v. Barnhart,
315 F.3d 239, 253 (4th Cir. 2002) (quoting INS v.
Jean, 496 U.S. 154, 161 (1990)). A district court is
given “‘substantial discretion in fixing the
amount of an EAJA award'” and may grant
applications for awards only if the request is reasonable.
Id. at 254 (quoting Jean, 496 U.S. at 163).
“The fee petitioner bears the burden of justifying a
requested fee.” Meade v. Barnhart, 218
F.Supp.2d 811, 813 (W.D. Va. 2002) (citing Blum v.
Stenson, 465 U.S. 886, 895 n.11 (1984)).
Motion represents that the parties have agreed to a total of
$5, 000.00 in attorney's fees. (Doc. 14 at 2).
Plaintiff's counsel asserts he spent 26 hours working at
an hourly rate of $195.63. The Court takes notice of its
independent responsibility to review the hour log submitted
by Plaintiff's counsel and determine whether the time
spent on each itemized task and Plaintiff's counsel's
hourly rate amount to a reasonable fee. See 28
U.S.C. § 2412(b), (d)(2)(A); 42 U.S.C. § 406(b);
see also Green v. Astrue, 2012 WL 1232300, at *2
(E.D. Cal. Apr. 12, 2012) (magistrate judge's finding and
recommendation independently reviewing fee request for
reasonableness in social security proceeding and reducing fee
request even though Commissioner did not oppose motion for
fees) (adopted by Green v. Astrue, 2012 WL 1663868
(May 11, 2012)).
Court determines the hourly rate requested is reasonable.
See 28 U.S.C. § 2412(d)(2)(A) (setting hourly
rate at $125 but permitting court to increase hourly rate
based on cost of living or other special factors). The same,
however, cannot be said for all of the itemized hours'
worked. In reviewing Plaintiff's counsel's itemized
list of hours, this Court notes that Plaintiff's counsel
is a highly experienced attorney in the field of social
security who represents many social security claimants each
year before this Court. This Court finds four entries in
Plaintiff's counsel's time log unreasonable.
on April 20, 2016, Plaintiff's counsel lists 0.25 hours
for “review court order.” (Doc. 14-2 at 1). The
order issued by this Court on April 20, 2016, was a one page,
form order granting leave to proceed in forma
pauperis and consisted of a single paragraph and four
bullet points. (See Doc. 3). An attorney reasonably
familiar with social security proceedings and who had already
completed the in forma pauperis application in this
matter, (see Doc. 14-2), would be able to read and
ascertain this Court's April 20, 2016 order in a few
minutes rather than the fifteen minutes listed by
Plaintiff's counsel. See Dyer v. Colvin, 2014 WL
1271159, at *2 (D. Md. Mar. 25, 2014) (“It should not
take an experienced attorney twelve to eighteen minutes to
review [one-page form letters or orders], especially where .
. . they are filed in nearly all of the numerous Social
Security cases [the attorney] handles.”) (magistrate
judge's report and recommendation adopted by order on
Apr. 4, 2014); Green, 2012 WL 1232300, at *3-4
(noting that review of routine court orders by attorneys
familiar with social security appeals “require no more
than two to three minutes per task” and reducing
multiple entries of 0.1 hours for review of court orders).
Accordingly, the Court reduces this entry from 0.25 hours to
on July 5, 2016, Plaintiff's counsel lists 0.50 hours for
“review scheduling order-set diary dates.”
Id. This Court's July 5, 2016, scheduling order
was a text order containing two deadlines and totaling three
sentences. See Text Order dated July 5, 2016.
“Any competent counsel would be able to comprehend and
notate the Court's scheduling order within a mere minute
or two, rather than taking thirty minutes to do so.”
Ashcraft v. Berryhill, 2017 WL 2273155, at *6 (W.D.
N.C. May 24, 2017) (Voorhees, J.); see also Dyer,
2014 WL 1271159, at *2; Green, 2012 WL 1232300, at
*3-4. Accordingly, and for the reasons explained in
Ashcraft, this entry will be reduced from 0.50 hours
to 0.05 hours.
on February 27, 2017, Plaintiff's counsel lists 0.25
hours for “review court order and judgment.”
(Doc. 14-2 at 1). This Court's February 27, 2017, order
was a one paragraph, form order granting a consent motion
that Plaintiff's counsel previously reviewed.
(See Doc. 12; see also Doc. 14-2 (noting
time for reviewing motion to remand)). The order, therefore,
should not take fifteen minutes to review, and this Court
reduces the entry from 0.25 hours to 0.05 hours. See
Dyer, 2014 WL 1271159, at *2; Green, 2012 WL
1232300, at *3-4.
on May 22, 2017, Plaintiff's counsel lists 1.5 hours for
“draft/work on EAJA motion and memorandum.” (Doc.
14-2). The documents prepared by counsel are recycled form
documents common to fee applications by social security
claimants and only required counsel to insert a few details
specific to this matter. The Court reduces this entry from
1.50 hours to 1.0 hours, which the Court considers a generous
amount of time.
the above reductions in time, Plaintiff's request of 26.0
hours is reduced by 1.35 hours. Accordingly, the Court
concludes that only 24.65 hours are reasonable for purposes
of recovery under the EAJA. At the approved rate of $195.63
per hour, Plaintiff's compensable attorney fee comes to
to the United States Supreme Court's ruling in Astrue
v. Ratliff, 560 U.S. 586 (2010), attorney's fees are
payable to Plaintiff as the prevailing party, subject to
offset through the Treasury Department's Offset Program
to satisfy any pre-existing debt Plaintiff might owe to the
federal government. Following the entry of this order, if the
Commissioner determines Plaintiff owes no debt to the federal
government which must offset, the Commissioner may honor
Plaintiff's April 2016 signed assignment of EAJA fees,
thus permitting payment of such EAJA fees to Plaintiff's
counsel, rather than to the Plaintiff herself. (Doc. 14-1).
However, if Plaintiff is found to owe any offsetting debt to
the federal government, the Commissioner shall pay any
remaining attorney's fees to Plaintiff's counsel in
accordance with the above agreement.
IS, THEREFORE, ORDERED THAT
Plaintiff s Motion for Attorney Fees under the Equal Access
to Justice Act (Doc. 14) is GRANTED IN PART
and DENIED IN PART;
Commissioner shall pay to Plaintiff her reasonable
attorney's fees in the amount of $4, ...