United States District Court, W.D. Arkansas, Fayetteville Division
ERIN L. SETSER, UNITED STATES MAGISTRATE JUDGE
Korinne Shirley, appealed the Commissioner’s denial of
benefits to the Court. On January 12, 2016, a Judgment was
entered remanding this matter to the Commissioner pursuant to
sentence four of 42 U.S.C. §405(g). (Doc.13). Plaintiff
now moves for an award of $2, 678.45 in attorney’s fees
under 28 U.S.C. §2412, the Equal Access to Justice Act
(hereinafter “EAJA”), requesting compensation for
14.50 attorney hours of work performed before the Court an
hourly rate of $173.07 for work performed in 2014, $172.81
for work performed in 2015, and $172, 38 for work performed
in 2016. Defendant filed a response to
Plaintiff’s application, stating that she does not
oppose an award to Plaintiff in the amount requested. (Doc.
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
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 customary fee; whether the fee is fixed or
contingent; time limitations imposed by the client or the
circumstances; the amount involved and the results obtained;
the attorney’s experience, reputation and ability; the
“undesirability” of the case; the nature and
length of the professional relationship with the client; and
awards in similar cases. Hensley v. Eckerhart, 461
U.S. 424, 430 (1983).
the EAJA is not designed to reimburse without limit.
Pierce v. Underwood, 487 U.S. 552, 573 (1988). 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 (8thCir. 1992)
(“Although the issue was not raised on appeal, fairness
to the parties requires an accurately calculated
attorney’s fee award.”).
EAJA further 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, 461 U.S. at 433 (1983).
attorney requests an award under the EAJA for 1.75 hours of
attorney work performed in 2014, at an hourly rate of
$173.07; 13.25 hours of attorney work performed in 2015, at
an hourly rate of $172.81, and 1 hour of attorney work
performed in 2016, at an hourly rate of $172.38. The party
seeking attorney fees bears the burden of proving that the
claimed fees are reasonable. Hensley, 461 U.S. at
437. 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 attorneys justifies a higher fee.
28 U.S.C. § 2412(d)(2)(A). In Johnson v.
Sullivan, 919 F.2d 503 (8th Cir. 1990), the
Court stated that the hourly rate may be increased when there
is “uncontested proof of an increase in the cost of
living sufficient to justify hourly attorney’s fees of
more than [the maximum statutory hourly rate], ” such
as a copy of the Consumer Price Index (CPI).
Plaintiff’s counsel submitted a CPI in support of his
requested hourly rate. Therefore, the undersigned believes
his argument for enhanced fees based on a cost of living
increase has merit. See Johnson, 919 F.2d at 505.
Court will next address the number of hours requested by
Plaintiff’s counsel. Plaintiff’s counsel
submitted the following attorney hours:
Summons Issued to Defendants
Affidavit of Completion of Service
respect to these hours, clerical or secretarial tasks are not
compensable under the EAJA. See Granville House, Inc. v.
Department of HEW, 813 F.2d 881, 884 (8th Cir. 1987)
(work which could have been completed by support staff is not
compensable under the EAJA). “[P]urely clerical or
secretarial tasks should not be billed at [even] a paralegal
rate regardless of who performs them.” Missouri v.
Jenkins, 491 U.S. 274, 288 n. 10, 109 S.Ct. 2463, 2471
n. 10 (1989). There is a plethora of district court cases
reaching different conclusions as to whether tasks such as
those detailed above are compensable or are considered purely
clerical. See e.g., Peters v. Colvin, No.
15-CV-5198-JRC, 2016 WL 948958 at *5 (W.D. Wash. Mar. 14,
2016); Zabawa v. Colvin, 3:14-CV-3068-MEF, 2016 WL
164625 at *1 (W.D. Ark. Jan. 13, 2016); Sheridan v.
Colvin, No. JKB-15-10, 2015 WL 5897735 at *2 (D. Md.
Oct. 5, 2015); Talmo v. Colvin, No. ELH-14-2214,
2015 WL 5897707 at *2 (D. Md. Oct. 5, 2015); Treadway v.
Comm’r. of Social Security, No. 1-13-cv-01248-SAB,
2014 WL 6901869 at *5-6 (E.D. Cal. Dec. 5, 2014);
Echtinaw v. Astrue, No. C09-0024-RSL, 2009 WL
6040072 at *4 (W.D. Wash. Dec. 9, 2009); Knudsen v.
Barnhart, 360 F.Supp.2d 963, 977 (N.D. Iowa 2004).
a review of the various decisions of the Circuit Courts of
Appeals indicates that all that have addressed the issue,
except the First Circuit, hold that tasks such as the filing
of documents and preparing and serving summons are considered
clerical and not compensable. See Neil v. Comm’r.
of Social Security, 495 Fed.Appx. 845, 847 (9th Cir.
2012); Role Models America, Inc. v. Brownlee, 353
F.3d 962, 973(D.C. Cir. 2004); Coleman v. Houston
Independent School District, No. 98-20692, 1999 WL
1131554 at *9 (5th Cir. Nov. 8, 1999). The Eighth Circuit
does not appear to have addressed the issue. The First
Circuit, in Lipsett v. Blanco, 975 F.2d 934, 940
(1st Cir. 1992), held that tasks such as the filing of
documents “ought not to be billed at lawyers’
rates, even if a lawyer performs them.” The Court held
that the hours should not be completely eliminated, however,
as the tasks “fell into the gray area between purely
clerical tasks and those properly entrusted to a
paralegal.” Id. The Court concluded that,
while the hours should not be compensated at the extravagant
attorney-fee rate, which was incommensurate to the nature of
the tasks, the hours could be compensated at the prevailing
undersigned finds the First Circuit’s approach
persuasive and a reasonable compromise when it is not clear
whether tasks such as those at issue in this case should be
classified as purely clerical. Accordingly, Plaintiff’s
attorney will be compensated for these tasks at the
prevailing hourly paralegal market rate, which, based on the
paralegal rates submitted by other attorneys in this area, is
upon the foregoing, the Court finds that Plaintiff is
entitled to an attorney’s fee award under the EAJA for:
1.75 attorney hours for work performed in 2014, at hourly
rate of $173.07, 12.50 attorney hours (13.25 less 0.75 hours)
for work performed in 2015, at an hourly rate of $172.81, 1
attorney hour for work performed in 2016, at hourly rate of
$172.38, and 0.75 paralegal hours at an hourly rate of
$75.00, for a total attorney’s fee of $2, 691.63. This
amount should be paid in addition to, and not out of, any
past due benefits which Plaintiff may be awarded in the
future. Based upon the holding in Astrue v. Ratliff,
130 S.Ct. 2521 (2010), the EAJA award should be paid directly
parties are reminded that the award herein under the EAJA
will be taken into account at such time as a reasonable fee
is determined pursuant to 42 U.S.C. § 406, in order ...