United States District Court, D. Kansas
MEMORANDUM AND ORDER
W. Lungstrum United States District Judge.
matter is before the court on Plaintiff's
“Application for Attorney Fees Under The Equal Access
to Justice Act” (EAJA) (28 U.S.C. § 2412) (Doc.
23) (hereinafter EAJA Mot.). The Commissioner does not object
to the hourly rate of $191.21 requested by Plaintiff, or to
awarding costs of $400.00, and she admits that a fee award is
proper but argues that the amount requested is unreasonable
because “the attorney hours billed are excessive,
particularly in light of counsel's representation of
Plaintiff during the administrative proceedings.” (Doc.
24, p.3) (hereinafter EAJA Resp.). The court finds Plaintiff
has not met his burden to establish that the amount of time
billed was reasonable. Therefore, the court PARTIALLY GRANTS
Plaintiff's motion for attorney fees, allowing 32.65
hours at the rate of $191.21, resulting in a fee award of $6,
243.00 as explained hereinafter.
sought review of the Commissioner's decision denying
disability insurance benefits. (Doc. 1). The Commissioner
answered and filed the transcript of record. (Docs. 3, 4).
After briefing was complete, this court determined the ALJ
“did not adequately explain his findings regarding
deficits in Plaintiff's concentration, persistence, or
pace resulting from his pain, and Plaintiff's ability
nonetheless to perform highly skilled work, ” and
ordered that judgment be entered remanding the case for
further proceedings. (Doc. 21, p.1) (hereinafter Ct's
Opinion). Plaintiff now seeks payment of attorney fees
pursuant to the EAJA,  28 U.S.C. § 2412.
counsel, Mr. David H. M. Gray, has established that: (1) he
has represented Plaintiff pursuant to a contingency fee
agreement since October 11, 2013, (2) his customary hourly
rate is $300.00, and (3) he expended fifty-one and four
tenths hours in representing Plaintiff including: (a)
twenty-nine and five tenths hours preparing and filing a
Complaint, and reading, researching, and writing
Plaintiff's Brief in the case, (b) fifteen and
seventy-five hundredths hours reading, researching, and
writing a Reply Brief, (c) one and sixty-five hundredths of
an hour reading the court's Order and preparing an EAJA
fee brief, and (d) four and fifty hundredths hours
researching and preparing an EAJA reply brief.
Plaintiff's counsel also asserts that the fee cap under
the EAJA, adjusted for cost of living increases, is $191.21
per hour, and he seeks fees in the amount of $9, 828.14.
court has a duty to evaluate the reasonableness of every fee
request. Hensley v. Eckerhart, 461 U.S. 424, 433-34
(1983). The EAJA requires that a court award a fee to a
prevailing plaintiff unless the court finds that the position
of the United States was substantially justified. Gilbert
v. Shalala, 45 F.3d 1391, 1394 (10th Cir. 1995) (citing
Estate of Smith v. O'Halloran, 930 F.2d 1496,
1501 (10th Cir. 1991)). The test for substantial
justification is one of reasonableness in law and fact.
Id. The Commissioner bears the burden to show
substantial justification for her position. Id.;
Estate of Smith, 930 F.2d at 1501. Here, the
Commissioner does not argue that the government's
position was substantially justified. The maximum fee of $125
per hour provided in § 2412(d)(2)(A), if awarded, may be
adjusted for increases in the cost of living. Harris v.
R.R. Ret. Bd. 990 F.2d 519, 521 (10th Cir. 1993); 28
U.S.C. § 2412(d)(2)(A)(ii).
party seeking attorney fees bears the burden of proving that
his request is reasonable and must “submit evidence
supporting the hours worked.” Hensley, 461
U.S. at 433, 434. The objecting party has the burden to
challenge, through affidavit or brief, with sufficient
specificity to provide notice to the fee applicant the
portion of the fee petition which must be defended. Bell
v. United Princeton Prop., Inc., 884 F.2d 713, 715 (3d
Commissioner agrees that award of a fee under the EAJA is
appropriate in this case but disagrees with the amount of the
fee requested. She argues that “[m]ultiple courts have
found that 20 to 40 hours is a reasonable expenditure of
attorney time for routine Social Security cases.” (EAJA
Resp. 4) (citing cases). She argues that Plaintiff opted for
a “Cadillac” litigation strategy, but that the
court should not make the government pay for such an
unreasonable choice. Id. at 3 (citing Praseuth
v. Rubbermaid, Inc., 406 F.3d 1245, 1247 (10th Cir.
2005)). Particularly, she objects to being billed 27.5 hours
to prepare a 27-page opening brief addressing “every
possible issue, ” and 11.75 hours to draft a 16-page
reply brief. Id.
argues that the time expended is “excessive in light of
[counsel's] familiarity with this case, ”
id. at 4, and the eight-page brief he presented to
the agency in July, 2015 “containing many of the same
legal arguments he made before this court.”
Id. at 5. She argues that Plaintiff's counsel
explained his experience and expertise in dealing with Social
Security disability cases, and she asserts that an attorney
so well qualified as he should not take so many hours to
present a case such as this. (EAJA Resp. 5).
Commissioner argues that this case involved an average-length
record and standard arguments, and there is nothing to
justify awarding a fee above the high-end of the spectrum of
typical awards. Id. at 6 (citing Williams v.
Astrue, No. 06-4027-SAC, 2007 WL 2582177 at *1 (D. Kan.
Aug. 28, 2007) (“[C]ourts in this district have not
hesitated to disallow hours over 40 as unreasonable in recent
routine EAJA social security cases;” collecting cases).
The Commissioner points to a case in which this court
recently awarded 35-hours of fees to the same counsel, and
argues that case is similar and can be used as a gauge here.
Id. (citing Lavoie v. Colvin, Civ. A. No.
14-1352-JWL, 2016 WL 4181323 (D. Kan. Aug. 8, 2016)). She
notes the court found that in normal circumstances 30 hours
would be reasonable in a case such as Lavoie, but
that five hours additional was justified because counsel had
not represented Ms. Lavoie before the Commissioner and took
the case shortly before the limitation period expired in that
case. 2016 WL 4181323 at *3. She argues that this case is
similar to Lavoie except that counsel represented
the plaintiff in this case before the Commissioner and this
record is less than 600 pages whereas the record in
Lavoie was over 1, 100 pages. (EAJA Resp. 6).
counsel argues the cases relied upon by the Commissioner are
much larger cases with aggressive strategy and excessive
billing and do not relate to the subject matter of this case.
(Doc. 28 p. 5) (hereinafter EAJA Reply). He argues that
claims regarding a Cadillac litigation strategy, aggressive
strategy, and briefing every possible issue are not
“specific objections” within the meaning of the
governing law regarding objections to hours expended for
which fees are claimed pursuant to the EAJA, and are
insufficient to advise the fee applicant of what is at issue.
(EAJA Reply 5-6) (quoting Walton v. Massanari, 177
F.Supp.2d 359, 361-62 (E.D. Pa. 2001)). He argues that
although the court did not find merit in every issue raised
by Plaintiff, he may be compensated for all good-faith
arguments raised. Id. at 6-7. Plaintiff points to
the court's statement that certain facts removed this
case from the mine run of Social Security cases and argues
that this case is not a routine case. He argues this is also
true because the record at “571 pages is approaching
twice the typical record, ” and it did not involve
standard arguments because of the legal principles which
removed it from the mine run of cases. Id. at 10. He
argues that “[b]ecause the ALJ erred in so many
respects, the plaintiff was forced to submit a brief
that covered each of those areas in order to make an
appropriate presentation and argument to this court.”
Id. at 11 (quoting Coleman v. Astrue, No.