ZELDA DEE MANNING v. KILOLO KIJAKAZI (2023)

ORDER

This matter comes before this court on Plaintiff's motion for attorney's fees pursuant to the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d). [DE-29]. Plaintiff seeks $12,520.37 in fees for the work of her counsel in this matter and in replying to Defendant's opposition to her fee request. [DE-33] at 5. 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-32]. 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 $ 11,009.64.

I. Background

On August 19, 2021, Plaintiff initiated this action 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 Plaintiff's exertional capacity was erroneous. [DE-22, -23]. In response, Defendant filed a motion to remand the case to the Commissioner, [DE-24], to which Plaintiff consented, [DE-26], and the court remanded the case for further proceedings, [DE-27]. Plaintiff then sought attorney's fees under the EAJA, [DE-29], to which Defendant filed a response in opposition, [DE-32], and Plaintiff filed a reply, [DE-33].

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-32] 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 $11,810.31 in fees for 48.3 hours of attorney work and 7.9 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-33] at 5. In support of this request, Plaintiff submits affidavits and billing records detailing the hours claimed by counsel in preparing this case. [DE-30 to -30-4].

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 4.8 hours or $480.00.

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 0.1 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, 0.4 hours was charged to review three documents and the EAJA petition, all routine orders and documents that would take little time to review. [DE-30-3] at 3–4. However, there are other time entries for review of documents and orders that counsel did not charge any time for, 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 remand and drafting a response to the remand motion, id. at 2, which is a reasonable amount of time for these tasks. Finally, 0.3 hours is charged to draft a second motion for extension of time to file Plaintiff's brief. Id. Although this is a routine motion, the court finds the time charged is not unreasonable.

iii. Plaintiff's Motion for Judgment on the Pleadings

Counsel spent a total of 33.9 hours reviewing the administrative record, taking notes, organizing facts, researching issues, and drafting the procedural and fact sections of the brief, and another 8.7 hours researching issues and drafting argument. [DE-30-3] at 3. There were approximately 2200 pages of medical records in this case, which is admittedly large, but 28.6 hours spent reviewing and organizing the facts and another 5.3 hours drafting the procedural and fact sections is unreasonable even in light of the lengthy administrative record. See Lewis, 2022 WL 2128558, at *2 (finding 25.1 hours related to organizing the record and drafting a statement of facts was excessive and 57.1 total hours was out of proportion to other cases of similar record size, approximately 1600 pages, and complexity); Fryar, 2021 WL 769664, at *2 (recognizing 20-40 hours was a reasonable amount of time to spend on a routine social security case, and finding 30.8 hours reviewing the more than 3000 page administrative record and drafting the facts section was reasonable). The court finds a reduction of 3 hours or $687.15 is warranted to bring this case in line with similar cases.

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-33] at 5. The reply responds to Defendant's arguments and cites numerous cases. However, much of the reply is identical to the reply filed at the same time in Taylor v. Kijakazi, No. 2:21-CV-41-RJ, [DE-29]. Accordingly, the court finds a reduction of 1.5 hours or $343.58 is appropriate.

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:

3.1 hours of paralegal time at $100.00/hour = $310.00

2.9 hours of attorney time (2021) at $214.29 = $621.44

42.4 hours of attorney time (2022) at $229.05 = $9,711.72

1.6 hours of attorney time (reply) at $229.05 = $366.48

III. Conclusion

For the reasons stated above, Plaintiff's motion [DE-29] is allowed in part and denied in part, and Plaintiff is awarded a total of $ 11,009.64.

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

Robert B. Jones, Jr. United States Magistrate Judge