United States District Court, W.D. Arkansas, Fort Smith Division
MICHAEL J. WYSON, PLAINTIFF
CAROLYN W. COLVIN, Commissioner Social Security Administration, DEFENDANT
MEMORANDUM OPINION AND ORDER
HONORABLE MARK E. FORD UNITED STATES MAGISTRATE JUDGE.
Pending now before this Court is Plaintiff’s Motion for Attorney Fees Under the Equal Access to Justice Act (“EAJA”). (ECF Nos. 14, 15, 17) The matter is before the undersigned by consent of the parties. (ECF No. 6)
On February 4, 2016, Plaintiff filed a motion for attorney’s fees and costs under 28 U.S.C. § 2412, the Equal Access to Justice Act (hereinafter “EAJA”), requesting $5, 441.70 representing a total of 29.10 attorney hours for work performed in 2015 and 2016 at an hourly rate of $187.00. (ECF No. 14-1) On January 27, 2016, the Commissioner filed a response voicing no objection to the hourly rate sought, but objecting to the number of hours Plaintiff’s counsel is requesting. (ECF No. 18) The Plaintiff filed a reply on February 16, 2016, contending the fee requested is reasonable and compensable under the EAJA. (ECF No. 19)
II. Applicable Law:
Pursuant to 28 U.S.C. § 2412(d)(1)(A), the court must award attorney’s fees to a prevailing social security claimant unless the Commissioner’s position in denying benefits was substantially justified. The burden is on the Commissioner to show substantial justification for the government’s denial of benefits. Jackson v. Bowen, 807 F.2d 127, 128 (8th Cir. 1986). Under Shalala v. Schaefer, 509 U.S. 292, 302 (1993), a social security claimant who obtains a sentence-four judgment reversing the Commissioner’s denial of benefits and remanding the case for further proceedings is a prevailing party.
The EAJA requires an attorney seeking fees to submit “an itemized statement ... stating the actual time expended and the rate at which fees and other expenses were computed.” 28 U.S.C. § 2412(d)(1)(B). Attorneys seeking fees under federal fee-shifting statutes such as the EAJA are required to present fee applications with “contemporaneous time records of hours worked and rates claimed, plus a detailed description of the subject matter of the work.” Id. Where documentation is inadequate, the court may reduce the award accordingly. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983).
However, the EAJA is not designed to reimburse without limit. Pierce v. Underwood, 487 U.S. 552, 573 (1988). In determining a reasonable attorney’s fee, the court will in each case consider the following factors: time and labor required; the novelty and difficulty of questions involved; the skill required to handle the problems presented; the preclusion of employment by the attorney due to acceptance of the case, the attorney’s experience, ability, and reputation; the benefits resulting to the client from the services; the customary fee for similar services; the contingency or certainty of compensation; the results obtained; and, the amount involved. Hensley v. Eckerhart, 461 U.S. 424, 430 (1983). Further, the Court can determine the reasonableness and accuracy of a fee request, even in the absence of an objection by the Commissioner. Clements v. Astrue, 2009 WL 4508480 (W.D. Ark. Dec. 1, 2009); see also Decker v. Sullivan, 976 F.2d 456, 459 (8th Cir. 1992) (“although the issue was not raised on appeal, fairness to the parties requires an accurately calculated attorney’s fee award.”).
As a general rule, attorney fees may not be awarded in excess of $125.00 per hour-the maximum statutory rate under § 2412(d)(2)(A)-unless the Court finds that an increase in the cost of living or a special factor such as the limited availability of qualified attorney’s justifies a higher fee. 28 U.S.C. § 2412(d)(2)(A). The decision to increase the hourly rate is not automatic, though, and remains at the discretion of the district court. McNulty v. Sullivan, 886 F.2d 1074 (8th Cir. 1989). In Sanders v. Astrue, 2012 WL 19422 (W.D. Ark. Jan 3, 2012), this Court decided to follow the approach set forth in Knudsen v. Barnhart, 360 F.Supp.2d 963, 969-974 (N.D. Iowa 2004), wherein the Court found that “a reasonable balance between accuracy and ease of computation would be to require attorneys to adjust fees using the CPI available and applicable to the year when services were performed.” Id. at 974. In this case, we find that an increase in the cost of living justifies a higher fee. Accordingly, the Plaintiff is entitled to receive $187.00 per attorney hour completed in the furtherance of his case.
In the present action, Plaintiff’s case was remanded by this Court pursuant to sentence four of 42 U.S.C. § 405(g). (ECF No. 13) The Commissioner does not contest Plaintiff’s claim that he is the prevailing party and does not oppose his application for fees under the EAJA. ECF No. 18. The Court construes this lack of opposition to this application as an admission that the government’s decision to deny benefits was not “substantially justified” and that Plaintiff is the prevailing party and entitled to receive an award under the EAJA.
A. Excessive Time:
The Commissioner contends that the 1.00 attorney hour claimed for reviewing the Memorandum Opinion and Judgment and making notes for his EAJA motion on November 11, 2015, is excessive. (ECF NO. 16) After reviewing the history in this case, we agree. We note that the Opinion and Judgment were completed in response to the Commissioner’s Motion to Remand. (ECF Nos. 11, 12) The Opinion is approximately two pages in the length, and the Judgment a single page. (ECF Nos. 12, ...