United States District Court, W.D. Arkansas, Fayetteville Division
BRENDA M. MCILVAIN PLAINTIFF
NANCY A. BERRYHILL,  Commissioner Social Security Administration DEFENDANT
TIMOTHY L. BROOKS JUDGE
Brenda M. Mcllvain appealed the Commissioner's denial of
benefits to this Court. On June 6, 2017, judgment was entered
remanding Plaintiffs case to the Commissioner pursuant to
sentence four of 42 U.S.C. § 405(g). (Doc. 15).
Plaintiff now moves for an award of $4, 894.20 in
attorney's fees and expenses under 28 U.S.C. § 2412,
the Equal Access to Justice Act (hereinafter
"EAJA"), requesting compensation for 25.60 attorney
hours of work before the Court at an hourly rate of $188.00
per hour for work performed in 2016, and $192.00 per hour for
work performed in 2017. (Docs. 16-17). Defendant filed a
response to Plaintiff's application, stating that she
does not oppose an award to Plaintiff in the amount
requested. (Doc. 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
party. After reviewing the file, the Court finds that
Plaintiff is a prevailing party in this matter.
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.
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 (8th Cir. 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 5.25 hours of
attorney work performed in 2016, at an hourly rate of
$188.00; and 20.35 hours of attorney work performed in 2017,
at an hourly rate of $192.00. 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. §
to General Order 39,  which references the Consumer Price Index
(CPI) - South, the Court finds that an enhanced hourly rate
based on a cost of living increase is appropriate, and
counsel will be compensated at $188 per hour in 2016, and
$192.00 per hour in 2017.
Court next addresses the number of hours Plaintiffs counsel
claims she spent working on this case. Plaintiff's
counsel submitted a total of 0.15 hour on March 8, 2017,
March 9, 2017, and March 15, 2017, for receiving green cards
from Defendants and noting to staff regarding the affidavit
of service. Regarding this time, the Court notes that
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 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, Plaintiffs
attorney will be compensated for these other 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:
5.25 attorney hours for work performed in 2016, at an hourly
rate of $188; 20.20 (20.35 - 0.15) attorney hours for work
performed in 2017, at an hourly rate of $192; and 0.15
paralegal hour at an hourly rate of $75.00, for a total
attorney's fee of $4, 876.65. 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 to Plaintiff.
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 to
prevent double recovery by counsel for the PlairUiff.
IS SO ...