United States District Court, W.D. Arkansas, Fort Smith Division
ERIN L. SETSER UNITED STATES MAGISTRATE JUDGE
Deborah Todd Smith, appealed the Commissioner's denial of
benefits to the Court. On March 8, 2016, a Judgment was
entered remanding this matter to the Commissioner pursuant to
sentence four of 42 U.S.C. §405(g). (Doc.17). Plaintiff
now moves for an award of $4, 335.60 in attorney's fees
under 28 U.S.C. §2412, the Equal Access to Justice Act
(hereinafter "EAJA"), requesting compensation for
21.30 attorney hours of work performed before the Court in
2015 and 2016, at an hourly rate of $187.00, and for 4.70
paralegal hours of work performed in 2015 and 2016 at an
hourly rate of $75.00. Defendant filed a response to
Plaintiff's request, partially objecting to the number of
hours claimed, as clerical or excessive. Defendant also
states that an EAJA fee made payable to Plaintiff may
properly be mailed to Plaintiff's attorney. (Doc.20).
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
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 at an hourly rate
of $187.00 for 21.30 attorney hours spent in 2015 and 2016,
which he asserts were devoted to the representation of
Plaintiff in this Court. 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). Amended General Order No. 39 supports an
award based upon an hourly rate of $187.00 in 2015 and
2016. See Johnson, 919 F.2d at 505.
Court will next address the number of hours requested by
and Clerical Matters:
argues that the following time submitted by Plaintiff's
counsel should be deducted as it could have been performed by
Paralegal prepare Affidavit of Service for U.S.
Paralegal prepare Affidavit of Service for General
Paralegal prepare Affidavit of Service for U.S. Atty
Paralegal prepare Affidavit of Service for SSA Comm.
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 paralegal rate.
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, ...