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Palmer v. Colvin

United States District Court, W.D. Arkansas, Fort Smith Division

March 17, 2017

JASON COLTER PALMER PLAINTIFF
v.
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 Plaintiffs Motion for Attorney Fees Under the Equal Access to Justice Act ("EAJA"). ECF Nos. 16, 17. The matter is before the undersigned by consent of the parties. ECF No. 5.

         I. Background:

         On October 24, 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, 396.79 representing a total of 22.10 attorney hours for work performed in 2015 at an hourly rate of $187.00, 6.60 attorney hours for work performed in 2016 at an hourly rate of $188.00, and $23.29 in postage expense. ECF No. 16, 17. On November 2, 2016, the Commissioner filed a response objecting to the number of attorney hours for which the Plaintiff seeks compensation. ECF No. 18. Plaintiff filed a reply on November 21, 2016, contending that she is entitled to compensation for all of the time requested. 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).

         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.").

         III. Discussion:

         In the present action, Plaintiffs 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 he is the prevailing party and does not oppose his 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.

         A. Administrative Tasks:

         The Defendant objects to 2.20 attorney hours expended between May 5, 2015, and May 13, 2015, for a complete review of the file to determine if an appeal is warranted, a telephone call with the Plaintiff regarding his appeal and scheduling an office visit, a telephone call with the client rescheduling his office visit, and an office visit with the Plaintiff at which time the appeal process was explained to him and all of the case initiation paperwork was drawn up and signed. Citing Pray v. Astrue, 2011 WL 6937603, *2 (W.D. Ark. December 2, 2011) (finding certain tasks to be administrative in nature), Defendant contends that Plaintiffs attorney is not entitled to recover EAJA fees for any hours of work performed before a district court action begins. We disagree. An attorney is expected to be familiar with her case prior to filing a complaint in federal court. At the very least, this will require her to review notes from the administrative proceedings, communicate with his client regarding the appellate process, determine whether his client is a candidate for in forma pauperis, and prepare the complaint for filing with the court.

         B. Clerical Tasks:

         Defendant also objects to a total of 1.95 attorney hours, arguing that the tasks performed were clerical in nature and did not require any legal expertise. ECF No. 19. 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, ...


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