United States District Court, W.D. Arkansas, Fort Smith Division
CYNTHIA L. SHELTON, PLAINTIFF
CAROLYN W. COLVIN, Commissioner Social Security Administration, DEFENDANT
MEMORANDUM OPINION AND ORDER
HONORABLE MARK E. FORD UNITED STATES MAGISTRATE JUDGE
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.
March 14, 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 $7,
101.80, representing a total of 7.95 attorney hours for work
performed in 2014 at an hourly rate of $186.00, 26.30
attorney hours for work performed in 2015 at a rate of
$187.00, and 3.75 attorney hours for work performed in 2016
at an hourly rate of $188.00. (ECF No. 15-1) 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. 17)
The Plaintiff filed a reply on February 16, 2016, contending
the fee requested is reasonable and compensable under the
EAJA. (ECF No. 18)
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
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).
EAJA is not, however, 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.").
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 the hourly rates
requested for the years in question.
present action, Plaintiff’s case was remanded by this
Court pursuant to sentence four of 42 U.S.C. § 405(g).
The Commissioner does not contest Plaintiff’s claim
that she is the prevailing party and does not oppose her
application for fees under the EAJA. (ECF No. 16) 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.
Commissioner objects to a total of 1.25 attorney hours,
arguing that the tasks performed were clerical in nature and
did not require any legal expertise. We are governed by
Granville House, Inc. v. Department of HEW, 813 F.2d
881, 884 (8th Cir. 1987), which held that work which could
have been completed by support staff is not compensable under
the EAJA. This case asserts that it is the task, rather than
the title of the individual performing the task, that
determines whether or not the task is clerical.
reviewing counsel’s itemization of time and the
Defendant’s objections, the undersigned finds that the
following tasks are purely clerical in nature and not
compensable under EAJA: a telephone call from the client
rescheduling her appointment, receiving and reviewing proof
of service (green cards), and receiving and reviewing the
NEFs confirming filing of service of process. Counsel is,
however, awarded the full .15 attorney hours requested for
the preparation and execution of ...