United States District Court, D. Kansas
MEMORANDUM AND ORDER
W. LUNGSTRUM UNITED STATES DISTRICT JUDGE.
matter is before the court on Plaintiff's Motion for
Attorney Fees Under the Equal Access to Justice Act (EAJA)
(28 U.S.C. § 2412). (Doc. 17) (Pl. Mot.). Plaintiff
seeks $6, 753.95 in attorney fees. Id. The Acting
Commissioner (hereinafter Commissioner) admits that a fee
award is proper but argues that the amount requested is
unreasonable because the time claimed includes time not
properly chargeable. She suggests that no more than $5,
500.00 would be a reasonable fee. (Comm'r Response 5).
The matter is fully briefed and ripe for decision.
counsel has established by affidavits attached to his motion
that: (1) he represents Plaintiff in this matter, (2) the fee
cap under EAJA, adjusted for cost of living increases, is
$192.68 per hour for 2016 and $196.79 for 2017 and 2018, and
(3) he expended three and eight-tenths hours in representing
Plaintiff in 2016 and thirty and six-tenths hours
representing Plaintiff in 2017 and 2018. (Pl. Mot. &
Commissioner does not dispute the fee cap adjustment, and the
court finds that $192.68 and $196.79 are reasonable rates
under the EAJA during the applicable periods. The
Commissioner argues that Plaintiff's counsel wrongly
seeks fees for clerical work or administrative work performed
by counsel at the same rate as legal work and that he has
complicated the problem by his use of block billing-lumping
multiple tasks into a single entry of time, which although
not per se prohibited may prevent the court from
identifying the reasonable time spent on compensable tasks.
(Comm'r Response 4) (citing Cadena v. Pacesetter
Corp., 224 F.3d 1203, 1215 (10th Cir. 2000)).
court has a duty to evaluate the reasonableness of any fee
request. Hensley v. Eckerhart, 461 U.S. 424, 433-34
(1983). The EAJA, 28 U.S.C. § 2412, applies in Social
Security cases. Section 2412(d)(1)(A) of the Act 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. 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. Gilbert v. Shalala,
45 F.3d 1391, 1394 (10th Cir. 1995). The Commissioner bears
the burden to show substantial justification for her
position. Id.; Estate of Smith, 930 F.2d at
1501. The maximum fee of $125 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. §
court agrees with the Commissioner that “Ramos[ v.
Lamm, 713 F.2d 546, 553 (10th Cir. 1983)] admonishes
attorneys who wish to recover attorneys' fees not to
utilize the practice of block billing, because block billing
does not precisely delineate ‘how ... hours were
allotted to specific tasks.'” Cadena, 224
F.3d at 1215 (quoting Ramos, 713 F.2d at 553).
However, as the court found in Cadena, Plaintiff
here has provided billing records sufficient to allow
“the court to determine the time allotted by h[is]
attorneys to specific tasks and the reasonableness of that
time.” Cadena, 224 F.3d at 1215. Plaintiff is
correct that it is appropriate for an attorney to supervise
and follow up on subordinates, to confer with clients
regarding decisions in and the progress of the case, and to
calendar issues as reminders of further action needed or
documentation of actions taken. The court finds that $6,
753.95 is a reasonable attorney fee in this case.
court notes one issue regarding award of statutory fees of
which the parties need reminding. It does not appear that the
parties made a good faith attempt to reach agreement on fees
before raising the issue to the court. “A request for
attorney's fees should not result in a second major
litigation.” Hensley, 461 U.S. at 437.
Therefore, the district has enacted D. Kan. Rule 54.2 which
requires opposing counsel to consult to reach an agreement
regarding fees. The rule is designed “to save the
parties time and money in litigating unnecessary
issues.” Lintz v. American Gen. Fin., Inc., 87
F.Supp.2d 1161, 1165 (D. Kan. 2000).
motion, Plaintiff states that he contacted the Commissioner
“about this anticipated filing, ” but that he had
no response from defense counsel or the Social Security
Administration. (Pl. Mot. 1). This statement is insufficient
to meet the requirements of the local rule which states that
the party seeking statutory fees “must promptly
initiate consultation, ” and, where the parties do not
agree on fees, must file a statement of consultation setting
“forth the date of consultation, the names of those who
participated, and the specific results achieved.” D.
Kan. R. 54.2. It is Plaintiff's responsibility as the
party seeking fees to comply with the requirements of the
local rule. However, it is also the Commissioner's
responsibility to participate in good faith in the process,
and it looks like neither party did any more than pay lip
service to the rule. The court expects more. The rule
contemplates that the moving party may file his motion for
fees, and may then take up to an additional 30 days before
either the parties file a stipulation and request for order,
or the moving party files a statement of consultation and a
“memorandum setting forth the factual basis for each
criterion that the court is asked to consider in making an
award.” Id. at (b), (c). If the moving party
promptly initiates consultation, there should be no reason
good faith consultation will not be had before the statement,
memorandum, and supporting documents must be filed.
IS THEREFORE ORDERED that Plaintiff's motion
(Doc. 17) is GRANTED in part, and attorney fees in the amount
of $6, 753.95 shall be awarded in ...