Bunn v. Bowen

Decision Date05 May 1986
Docket NumberNo. 84-37-CIV-8.,84-37-CIV-8.
Citation637 F. Supp. 464
CourtU.S. District Court — Eastern District of North Carolina
PartiesMelba P. BUNN, Plaintiff, v. Otis R. BOWEN, Secretary of Health and Human Services, Defendant.



Peggy S. Levin, David Harris, Eastern Carolina Legal Services, Wilson, N.C., for plaintiff.

H. Robert Showers, Asst. U.S. Atty., Raleigh, N.C., for defendant.


JAMES C. FOX, District Judge.

This matter is before the court on plaintiff's motion for an award of attorney's fees pursuant to the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d)(1)(B). On February 24, 1986, plaintiff moved for EAJA attorney's fees and expenses in the amount of $8,954.59. Defendant has responded, not contesting plaintiff's entitlement to an award of fees, but strenuously disputing counsel's claim of hours reasonably expended and their request for an upward fee adjustment or multiplier.1

This civil action was filed on May 7, 1984, after defendant administratively denied plaintiff's application for supplemental security income under Title XVI of the Social Security Act, as amended, 42 U.S.C. § 1383(c)(3). On April 17, 1985, the court remanded this action to the Secretary for rehearing and a proper determination of whether plaintiff's impairments were severe and disabling. Subsequently, upon remand, plaintiff was administratively awarded benefits.

The EAJA permits an award of attorney's fees to a qualified prevailing party, other than the United States, in civil actions brought by or against the United States "unless the court finds that the position of the United States was substantially justified or that the special circumstances make an award unjust." 28 U.S.C. § 2412(d)(1)(A).2 The court has reviewed plaintiff's application for attorney's fees, affidavits of counsel, memorandum of law and defendant's objections thereto, and for the reasons set forth below, the court concludes plaintiff is entitled to attorney's fees under the EAJA.

Ordinarily, the government's position in the district court is substantially justified if the United States Attorney does no more than rely on an "arguably defensible administrative record." Guthrie v. Schweiker, 718 F.2d 104, 108 (4th Cir.1983). The finding that a final decision of the Secretary is not supported by substantial evidence does not equate to a finding that the position in the litigation was not substantially justified. Id.; Bennett v. Schweiker, 543 F.Supp. 897 (D.D.C.1982).

However, the government has the burden of demonstrating substantial justification for its position. Tyler Business Services, Inc. v. NLRB, 695 F.2d 73 (4th Cir. 1982); Alspach v. Director of Internal Revenue, 527 F.Supp. 225, 229 (D.Md.1981). The government must show that the position had a reasonable basis both in law and fact. Smith v. Heckler, 739 F.2d 144, 146 (4th Cir.1984); Zimmerman v. Schweiker, 575 F.Supp. 1436, 1439 (E.D.N.Y.1983). It is possible for the administrative record to be so deficient that the government may not reasonably rely on it. Guthrie v. Schweiker, 718 F.2d at 108.

In the case at bar, the government has elected not to contest the appropriateness of an award of fees to plaintiff's counsel under the EAJA.3 A brief review of the record indicates this concession is justified for a number of reasons.

First, the government failed to follow its own regulations in determining whether plaintiff suffered from a severe impairment. The second step of the Secretary's sequential process for evaluating disability claims requires a determination of whether plaintiff's impairments are "severe." 20 C.F.R. §§ 404.1520 and 416.920.4 The severity determination must take into account the claimant's physical and mental ability to do "basic work activities" predicated upon the criteria established in 20 C.F.R. §§ 404.1521(b) and 416.921(b). These sections define "basic work activities" as "the abilities and aptitudes necessary to do most jobs" and include six particularized functions. As this court found in reviewing the Secretary's decision to deny benefits, "nothing in the ALJ's opinion indicates he even considered the criteria set forth in 20 C.F.R. §§ 404.1521 and 416.921(b)." Order of April 17, 1985 at 7.

Second, after merely reciting the medical reports, the ALJ made broad, sweeping conclusions, without any apparent analysis or reasonable weighing of the evidence, finding that plaintiff's impairments did not significantly limit her ability to perform "basic work activities." As this court stated at the time, "the ALJ's findings are wholly conclusory.... The ALJ rejected plaintiff's medical and anecdotal evidence in a summary fashion. It is not enough for the Secretary to reject this evidence without assigning any reasons for doing so." Id. at 6-7. In failing to indicate the weight given to relevant evidence presented and, further, failing to properly consider some of plaintiff's uncontradicted medical evidence, the ALJ violated unambiguous and consistent precedent of the Fourth Circuit Court of Appeals. See, e.g., Gordon v. Schweiker, 725 F.2d 231 (4th Cir.1984); Myers v. Califano, 611 F.2d 980 (4th Cir. 1980); Stawls v. Califano, 596 F.2d 1209, 1213 (4th Cir.1979).

Accordingly, considering all of the above circumstances, the court finds the Secretary's position unreasonable and holds that defendant's position was not substantially justified in that it clearly was based on an indefensible administrative record. See Smith v. Heckler, supra. Therefore, the court concludes that an award of attorney's fees under the EAJA is proper. The remaining issue before the court is the amount of that award.

In all cases involving an award of fees, the Fourth Circuit has held that the guidelines established in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir.1974), must be followed. Barber v. Kimbrell's Inc., 577 F.2d 216 (4th Cir. 1978), cert. denied, 439 U.S. 934, 99 S.Ct. 329, 58 L.Ed.2d 330 (1978). The utilization of the Johnson factors has been modified by the Supreme Court's recent decisions in Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983) and Blum v. Stenson, 465 U.S. 886, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984). See Daly v. Starnes, 790 F.2d 1071 (4th Cir.1986). The initial step in this evaluation is to determine the number of hours reasonably expended and multiply that number times the customary fee for similar work. Hensley v. Eckerhart, 103 S.Ct. at 1940; Anderson v. Morris, 658 F.2d 246 (4th Cir.1981). In determining a reasonable hourly rate, the court should consider a number of factors, including the experience and skills of the attorney, the quality of the representation, the novelty and complexity of the litigation and the results obtained. Blum v. Stenson, 104 S.Ct. at 1548-49; Daly v. Starnes, at 1077-78. In addition, the court should consider, to the extent applicable, the remaining Johnson factors. Id., see also Spell v. McDaniel, 616 F.Supp. 1069 (E.D. N.C.1985).

In determining the number of hours reasonably expended the court has reviewed counsel's affidavits, defendants objections, and the record in general. Based upon this review, the court concludes counsel reasonably expended 43.5 hours and their paralegal 12.5 hours in the conduct of this litigation, although counsel request compensation for 85.1 hours and an additional 25.1 hours for paralegal Diggs. For the following reasons, this request is considered extremely excessive.

Although counsel are entitled to full compensation for their efforts, "it does not follow that the amount of time actually expended is the amount of time reasonably expended." Copeland v. Marshall, 641 F.2d 880, 891 (D.C.Cir.1980) (en banc). Hensley, supra, specifically directs the district court to exclude from its initial fee calculation "hours that were not reasonably expended." 103 S.Ct. at 1939. Counsel therefore are charged with exercising "billing judgment." Id. 103 S.Ct. at 1940. See also Ramos v. Lamm, 713 F.2d 546, 553 (10th Cir.1983). Thus, "counsel for the prevailing party should make a good faith effort to exclude from a fee request hours that are excessive, redundant, or otherwise unnecessary." Id. 103 S.Ct. at 1939-40.

In ascertaining which hours reported were reasonably expended, and thus billable, the court must examine the total number of hours reported by each lawyer, the hours alloted to specific tasks, whether those tasks would normally be billed to a paying client, and the potential duplication of services, particularly where multiple lawyers are involved. Ramos v. Lamm, 713 F.2d at 553-54. See also New York State Association for Retarded Children v. Carey, 711 F.2d 1136, 1146 (2d Cir.1983); Copeland v. Marshall, 641 F.2d at 903. These determinations must be made in the context of the specific case at bar; what is reasonable in one case may be unreasonable in another. The reasonableness of hours expended in a particular case depends upon the complexity of the case, the number of reasonable strategies pursued, and the responses necessitated by the tactics of the opponent. Ramos v. Lamm, 713 F.2d at 554.

Finally, the court must "weigh the hours claimed against its own knowledge, experience, and expertise of the time required to complete similar activities." Johnson, 488 F.2d at 717. See also Rajender v. University of Minnesota, 546 F.Supp. 158, 165 (D.Minn.1982). In sum, the court must carefully scrutinize the total number of hours reported by the fee applicant to arrive at the number of hours that can fairly and reasonably be charged to the losing party.

Although plaintiff's counsel have submitted extensive affidavits in support of their time expended, see National Association of Concerned Veterans v. Secretary of Defense, 675 F.2d 1319, 1327-28 (D.C. Cir.1982), this court finds a number of hours claimed were not reasonably expended in litigating this action.5

For example, Ms. Bailey's affidavit indicates she spent 16...

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