WANDA TAYLOR v. KILOLO KIJAKAZI (2023)

ORDER

This matter comes before this court on Plaintiff's motion for attorney's fees, expenses, and costs pursuant to the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d). [DE-24]. Plaintiff seeks $7,325.89 in fees for the work of her counsel in this matter and in replying to Defendant's opposition to her fee request, $18.39 in expenses, and $402.00 in costs. [DE-29] at 6. Defendant does not contest that Plaintiff is a prevailing party or her entitlement to an award but challenges the amount requested by Plaintiff as being unreasonable. [DE-28]. The matter is fully briefed and ripe for review. For the reasons set forth below, Plaintiff's motion for attorney's fees is allowed in part and denied in part, and Plaintiff is awarded a total of $7,406.28.

I. Background

On September 23, 2021, Plaintiff filed a complaint challenging the denial of her application for social security benefits. [DE-1]. Plaintiff filed a motion for judgment on the pleadings and memorandum in support, asserting that the ALJ's analysis of the opinion evidence was insufficient to support the decision. [DE-13, -14]. In response, Defendant filed a consent motion to remand the case to the Commissioner, [DE-21], which the court allowed and remanded the case for further proceedings, [DE-22]. Plaintiff then sought attorney's fees, expenses, and costs under the EAJA. [DE-24], to which Defendant filed a response in opposition, [DE-28], and Plaintiff filed a reply, [DE-29].

II. Discussion

The EAJA provides that a district court “shall award to a prevailing party ․ fees and other expenses ․ incurred by that party in any civil action” against the United States, or an agency thereof, “unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust.” 28 U.S.C. § 2412(d)(1)(A). Here, the Commissioner does not dispute that Plaintiff is entitled to an award under the EAJA and does not object to the hourly rates sought by Plaintiff's counsel. [DE-28] at 1. Rather, the Commissioner argues that the number of hours claimed by Plaintiff's attorney are excessive or non-compensable and should be reduced. Id. Under the EAJA, an award of attorney's fees must be “reasonable” with respect to both the hourly rate charged and the number of hours claimed. See Hyatt v. Barnhart, 315 F.3d 239, 248 (4th Cir. 2002) (quoting 28 U.S.C. § 2412(d)(2)(A)(ii)). In general, “the fee applicant bears the burden of establishing entitlement to an award and documenting the appropriate hours expended.” Id. at 253 (quoting Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)).

a. Number of Hours Charged

Plaintiff seeks an award of $6,615.83 in fees for 25.9 hours of attorney work and 7.1 hours of paralegal work in this matter, plus an additional $710.06 in fees for 3.1 hours of attorney work in responding to Defendant's opposition to her fee request. [DE-29] at 6. In support of this request, Plaintiff submits affidavits and billing records detailing the hours claimed by counsel in preparing this case. [DE-25 to -25-6].

Counsel “should submit evidence supporting the hours worked, and exercise ‘billing judgment’ with respect to hours worked.” Hyatt, 315 F.3d at 253 (quoting Hensley, 461 U.S. at 433–34). The court has broad discretion to determine what constitutes a reasonable fee award. See 28 U.S.C. § 2412(b); May v. Sullivan, 936 F.2d 176, 177 (4th Cir. 1991). Factors the court must consider in determining a reasonable fee award is “[t]he extent of a plaintiff's success,” “the novelty and complexity of the issues presented, and the experience and skill of the attorney.” Dixon v. Astrue, No. 5:06-CV-77-JG, 2008 WL 360989, at *3–4 (E.D.N.C. Feb. 8, 2008) (quoting Hyatt, 315 F.3d at 254). “[S]ome consensus [exists] among the district courts that 20–40 hours is a reasonable amount of time to spend on a social security case that does not present particular difficulty.” Fryar v. Saul, No. 7:19-CV-198-RJ, 2021 WL 769664, at *2 (E.D.N.C. Feb. 26, 2021) (quoting Harden v. Comm'r SSA, 497 F. Supp. 2d 1214, 1215 (D. Or. 2007) & citing Dixon, 2008 WL 360989 at *4 (noting that “compensated hours generally range from twenty to forty hours”)).

i. Clerical Tasks

The fee request includes time entries that are clerical in nature and not compensable. See Lewis v. Kijakazi, No. 7:21-CV-69-FL, 2022 WL 2128558, at *2 (E.D.N.C. May 26, 2022) (“[T]he court must reduce compensable hours claimed if for paralegal tasks or clerical tasks normally performed by non-attorneys.”) (citing Hyatt, 315 F.3d at 255). The court has previously determined tasks billed here, such as “Files received, reviewed and processed from referral source for attorney review”; “FDC contract and other rep docs prepared for client completion”; “FDC contract and other rep doc returned via Right Sig., reviewed for completion”; and “Combine, OCR and live bookmark Federal Court Transcript,” are non-compensable clerical tasks. See Fryar, 2021 WL 769664, at *2. Accordingly, the paralegal time will be reduced by 3.4 hours or $340.00.

ii. Reviewing and Drafting Routine Documents

The fee request includes multiple 0.1 time entries for reviewing routine court orders and documents. The court has previously found that tasks “such as reviewing court documents ․ are typically performed by an attorney and are compensable,” Fontana v. Astrue, No. 1:10-CV-0932-DLB, 2012 WL 259945, at *3 (E.D. Cal. July 21, 2011), but that billing 0.1 for each instance of review may result in overbilling. Fryar, 2021 WL 769664, at *3–4. In Downey v. Astrue, the court articulated the problem with billing multiple small tasks at .1 increments, resulting in a cumulative overestimation of the total time spent on those tasks:

Six-minute billing increments, which is how Ms. Bosavanh's time entries are recorded and presented, can be problematic when small tasks that require less than six minutes are recorded separately. Six-minute billing increments can result in a rounding-up that over-calculates the time actually spent on the tasks in total. Thus, for example, when eight separate tasks that require one minute each (for a total of eight minutes of time) and are billed as eight discrete six-minute tasks, they are billed as 48 minutes of time spent. In other words, eight minutes of actual time spent generates billing entries of 48 minutes․ While the Court appreciates the need for counsel to review court orders, the docket, and prepare routine documents for filing, the total amount billed for the tasks above is unreasonable when each event is recorded as a discrete six-minute event. Multiple 0.1 time entries for review of single-page documents in the record, such as notices and minute orders, resulted in an unreasonable accumulation of time.

No. 1:09-CV-00812-SKO, 2012 WL 1205824, at *12 (E.D. Cal. Apr. 11, 2012).

Here, 1.0 hour was charged to review ten routine orders and court filings that should take little time. [DE-25-2] at 2–4. However, there are other time entries for review of documents and orders that counsel did not charge any time for, id., and thus, the court declines to further reduce counsel's time for review of documents. Counsel also billed 0.2 hours for emailing opposing counsel regarding an extension of time and remand, id. at 3, which is a reasonable amount of time for these tasks. Finally, the court finds that the 0.5 hours charged to draft multiple routine case opening documents, id. at 2, is reasonable.

iii. Plaintiff's Motion for Judgment on the Pleadings

Counsel spent a total of 20.3 hours reviewing the administrative record, taking notes, organizing facts, researching issues, and drafting the brief. [DE-25-3] at 3. Having reviewed the brief filed by Plaintiff, the court disagrees with Defendant that Plaintiff presented an unnecessarily long summary of the facts. The brief was concise, and the time spent preparing it was reasonable and compensable. See Fryar, 2021 WL 769664, at *2 (recognizing 20–40 hours was a reasonable amount of time to spend on a routine social security case).

iv. Reply in Support of EAJA Motion

Plaintiff requests a total of 3.1 attorney hours for filing the reply in support of her EAJA application. [DE-29] at 6. The reply is six pages long, responds to Defendant's arguments, and cites numerous cases. The time requested for drafting the reply therefore appears reasonable and is compensable. See Fryar, 2021 WL 769664, at *5 (finding 2.7 hours of time spent on reply in support of EAJA fee application was compensable) (citation omitted).

b. Hourly Rate

With regard to an attorney's hourly rate, the EAJA provides, in pertinent part, as follows:

The amount of fees awarded ․ shall be based upon prevailing market rates for the kind and quality of the services furnished, except that ․ attorney fees shall not be awarded in excess of $125 per hour unless the court determines that an increase in the cost of living or a special factor, such as the limited availability of qualified attorneys for the proceedings involved, justifies a higher fee.

28 U.S.C. § 2412(d)(2)(A)(ii). The decision to grant an upward adjustment of this statutory cap is a matter within the court's sound discretion. Payne v. Sullivan, 977 F.2d 900, 901 (4th Cir. 1992). The Fourth Circuit has held that an increase in the statutorily prescribed rate for attorney's fees should be based on a general cost of living index. See Sullivan v. Sullivan, 958 F.2d 574, 578 (4th Cir. 1992). District courts interpreting Sullivan have settled on the U.S. Department of Labor's Consumer Price Index-South Urban Area (“CPI-SUA”) as the proper measure to incorporate a cost of living adjustment in EAJA cases. See Dixon, 2008 WL 360989, at *5 (explaining the CPI-SUA “is used to measure the cost of living adjustment for North Carolina”) (emphasis omitted). Furthermore, the court may not use a single rate for time entries spanning more than one calendar year. See id. at *4 (explaining “fees incurred in a particular year must be indexed using the cost of living multiplier to that year, and so on for each year in which fees were incurred”) (citation omitted).

Here, the court has reviewed the hourly rates sought by Plaintiff and finds them to be justified and reasonable. Accordingly, Plaintiff is awarded fees under the EAJA as follows:

3.7 hours of paralegal time at $100.00/hour = $370.00

1.8 hours of attorney time (2021) at $214.29 = $385.72

24.1 hours of attorney time (2022) at $229.05 = $5,520.11

3.1 hours of attorney time (reply) at $229.05 = $710.06

Plaintiff is also awarded $ 18.39 in expenses and $402.00 in costs for a total award of $7,406.28.

III. Conclusion

For the reasons stated above, Plaintiff's motion [DE-24] is allowed in part and denied in part, and Plaintiff is awarded a total of $7,406.28.

So ordered, this the 17th day of March, 2023.

Robert B. Jones, Jr. United States Magistrate Judge