Gibby v. Astrue
| Decision Date | 02 August 2012 |
| Docket Number | CIVIL CASE NO. 2:09cv29 |
| Court | U.S. District Court — Western District of North Carolina |
| Parties | CASEY ELLISON GIBBY, Plaintiff, v. MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. |
THIS MATTER is before the Court on the Plaintiff's Motion for Attorney's Fees under the Equal Access to Justice Act and the Social Security Act [Doc. 18].
On May 12, 2009, the Plaintiff initiated this action for judicial review of the denial of her application for Social Security Disability Benefits and for an award of benefits based on an onset date of disability of July 18, 2003. [Doc. 1]. The Complaint and the Motion for Summary Judgment were signed only by Russell Bowling (Bowling) as the attorney for the Plaintiff. [Id.; Doc. 8]. However, the Memorandum of Law in support of the Plaintiff's Motion forSummary Judgment was signed by Charles Martin (Martin) as attorney for the Plaintiff "On the brief." [Doc. 9 at 30]. Because of this discrepancy, the Court required Martin to seek admission to practice in this Court pro hac vice. [Doc. 12]. Martin was subsequently so admitted.1 [Doc. 14].
On October 28, 2011, the Plaintiff's Motion for Summary Judgment was granted to the extent that she sought reversal of the Commissioner's decision denying her disability benefits. [Doc. 26]. To the extent that she sought an immediate award of benefits, the motion was denied. [Id.]. The Court remanded the case pursuant to Sentence Four of 42 U.S.C. §405(g) to the Commissioner for further administrative action consistent with the decision.2 [Id.]. As a result, the Defendant's Motion for Summary Judgment was denied. [Id.]. Judgment was simultaneously entered reversing the Commissioner's decision and remanding the case. [Doc. 17].
On January 25, 2012, the Plaintiff timely filed the pending motion seeking attorney's fees.3 [Doc. 18]. The title of the motion seeks feespursuant to both the Equal Access to Justice Act (EAJA), 28 U.S.C. §2412(d) and the Social Security Act, 42 U.S.C. §406(b). [Doc. 18]. Because there has not been an award of past-due benefits, however, the Court will only address the request for fees pursuant to EAJA. 42 U.S.C. §406(b)(1)(A). Indeed, the demand for relief refers only to fees pursuant to EAJA. [Doc. 19 at 2].
The Defendant responded to the motion for an award of fees, making specific objections thereto. [Doc. 20]. The Plaintiff thereafter filed a reply. [Doc. 21].
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 Defendant does not dispute that the Plaintiff was a prevailing party.4 [Doc. 32]. Nor does he claim that the position of the agency was substantially justifiedor that special circumstances make an award unjust. [Id.]. The Defendant does, however, object to both the time spent and the hourly rate requested by counsel. [Id.].
EAJA provides for an award of "reasonable" attorney's fees. 28 U.S.C. §2412(d)(2)(A).
The most useful starting point for determining the amount of a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate. This calculation provides an objective basis on which to make an initial estimate of the value of a lawyer's services. The party seeking an award of fees should submit evidence supporting the hours worked and rates claimed. Where the documentation of hours is inadequate, the district court may reduce the award accordingly. The district court should also exclude from this initial fee calculation hours that were not "reasonably expended." Cases may be overstaffed, and the skill and experience of lawyers vary widely. 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, just as a lawyer in private practice ethically is obligated to exclude such hours from his fee submission. ... Hours that are not properly billed to one's client also are not properly billed to one's adversary pursuant to statutory authority.
Hensley v. Echerhart, 461 U.S. 424, 433-34, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983), abrogated on other grounds by Texas State Teachers Ass'n v. Garland Independent School District, 489 U.S. 782, 109 S.Ct. 1486, 103 L.Ed.2d 866 (1989)) (internal quotation and citation omitted) (emphasis in original). The fee applicant bears the burden of establishing the reasonabletime expended as well as a reasonable hourly rate. Hyatt v. Barnhart, 315 F.3d 239, 253 (4th Cir. 2002).
The first review is of the hours spent in the representation of the Plaintiff in this Court. The Complaint filed in this action is a mere two pages in length. [Doc. 1]. Bowling, however, has provided an affidavit in which he states that his paralegal expended 1.0 hour drafting the Complaint and he spent .50 hour reviewing it. [Doc. 19-3 at 5]. The Court finds this amount unreasonable in view of the length of the Complaint and the lack of detail contained therein. Louis v. Astrue, 2012 WL 92884 **4-5 (E.D.Cal. 2012) (). The compensable time will therefore be reduced to .50 hour of paralegal time for drafting and .25 hour for review by the attorney.
Bowling has listed 1hour of time expended by his paralegal for the filing of documents and .50 hour spent by him to file Martin's motion for admission to the Court pro hac vice. [Doc. 19-3 at 5]. The filing of a document is a "purely clerical or secretarial" activity which is not billable at a paralegal's rate or, indeed, any rate at all since such tasks are included in office overhead. Holmes v. Astrue, 2010 WL 3220085 **2 (D.S.C. 2010) (quoting Missouri v.Jenkins, 491 U.S. 274, 288 n.10, 109 S.Ct. 2463, 105 L.Ed.2d 229 (1989)). Thus, "[w]hen clerical tasks are billed at hourly rates, the court should reduce the hours requested to account for the billing errors." Nadarajah v. Holder, 569 F.3d 906, 921 (9th Cir. 2009). This time will therefore be excluded.
Bowling states that he spent .50 hour reviewing the Defendant's Answer to the Complaint. [Doc. 19-3 at 5]. The Answer, which is standard in both form and content, is a mere two and one-half pages in length. [Doc. 6]. It is difficult to understand why an attorney of Bowling's experience would require this much time to review it. The time will be reduced to .25 hour.
Likewise, Bowling spent .20 hour reviewing the Scheduling Order, a task which is usually performed by staff. [Doc. 19-3 at 5]. Giving Bowling the benefit of supervisory control over such staff, the time will be reduced to .10 hour. The time records show that Bowling spent as much time reviewing this Court's one page Order (Doc. 14) granting Martin's request for pro hac vice admission as he did reviewing the Court's ten page Memorandum of Decision and Order (Doc. 16) granting the Plaintiff relief. [Id.]. The time spent reviewing the grant of admission will be reduced to .10 hour.
Applying these reductions to Bowling's services, his request for attorney's fees is reduced to 4.00 hours. Bowling's paralegal time is reducedto .90 hours.
Martin has provided an affidavit in which he states that he provided 5.30 hours of "brief writing services" to Bowling. [Doc. 19-4 at 1]. The time sheet, however, discloses that Martin verified service on the Defendant, noted that the Defendant had filed the administrative record, noted that the case had been assigned to a different judge, and noted that defense counsel had been substituted. [Id. at 4]. None of these tasks constitute brief writing; they are instead administrative functions that are more appropriately performed by staff. Holmes, 2010 WL 3220085. Martin also lists time which was duplicative of the same tasks performed by Bowling, such as reviewing the Scheduling Order and Answer, performing revisions to the memorandum of law and reviewing the Defendant's Motion for Summary Judgment. [Doc. 19-4 at 4]. These functions are redundant of time spent by Bowling and/or his paralegal. Hensley, 461 U.S. at 434 . "[T]he court should disallow not only hours spent on tasks that would normally not be billed to a paying client, but also those hours expended by counsel on tasks that are easily delegable to non-professional assistants." Spegon v. Catholic Bishop of Chicago, 175 F.3d 544, 553 (7th Cir. 1999). Martin's timeis therefore reduced to a total of 1.30 hours.
Jane Muller Peterson (Peterson) is an associate with Martin's firm. [Doc. 19-5 at 2]. She is admitted to the bar of the District Courts of the Middle Districts of Wisconsin and Pennsylvania. [Id at 1]. She was not admitted pro hac vice in this Court and she was not listed on the Memorandum of Law as counsel "on the brief." [Doc. 9 at 30]. Indeed, the first time the Court became aware of Peterson's extensive involvement in this case was when the pending motion for an award of fees was filed.5 Had the Court been made aware of her involvement, she would have been required to move for admission to the Court pro hac vice, just as Martin was required to do so. Indeed, in the Order requiring Martin to make such a filing, this Court ruled as follows:
The Court will allow Mr. Martin to apply for admission in this matter pro hac vice, with that admission to be nunc pro tunc to the filing of the case. If any other attorneys who are not licensed to practice before this Court have likewise actively participated in the representation of the Plaintiff in this matter, such other attorneys must also apply for admission pro hac vice...
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