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 (Doc. 11) (hereinafter Pl. Mot.). The Acting
Commissioner (hereinafter Commissioner) does not oppose a fee
award, but argues that the amount requested is unreasonable
because an unreasonable amount of time was expended in
preparing Plaintiff's Social Security Brief. (Doc. 12)
(hereinafter Comm'r Resp.) The court finds the time
billed is excessive. Therefore, it PARTIALLY GRANTS
Plaintiff's motion for 33.00 hours of attorney fees at
the rate of $191.25, resulting in a fee award of $6, 311.25
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 with the court.
(Doc. 6). Almost a month after Plaintiff filed her Social
Security Brief (Doc. 7), the Commissioner filed an
“UNOPPOSED MOTION FOR REMAND PURSUANT TO SENTENCE FOUR
OF 42 U.S.C. § 405(g), ” confessing (without
specifying) error in the decision below. (Doc. 8). Plaintiff
now seeks payment of attorney fees pursuant to the
EAJA. (Pl. Mot.).
counsel asserts that Plaintiff is the prevailing party as
defined in the EAJA, that the Commissioner's position was
not substantially justified, that no circumstances present in
this case make an award unjust, that he expended 39.25 hours
in this case, and that the fee cap under the EAJA, adjusted
for cost of living increases, is $191.25 per hour. (Pl. Mot.
1-2). He argues, therefore, that a reasonable fee in this
case is $7, 506.00. Id. at 3-4.
Commissioner argues that the 37.25 hours billed for drafting
Plaintiff Social Security Brief is excessive. (Com'r
Resp. 1). Specifically, she argues that Plaintiff's
request is unreasonable because it includes time not properly
billable to a client or, by extension, to an adversary.
Id. at 2. She argues that 37.25 hours reviewing the
record and preparing a 26-page opening brief is excessive for
an experienced Social Security practitioner, with a record
only slightly larger than typical, and relying on standard
authorities, and routine arguments. Id. at 3-4. She
also argues that “to the extent that counsel may assert
that the expenditure of time was necessary for another
attorney at the firm to come up to speed on the matter, this
is not time properly billable to a paying client.”
Id. at 4 (citing Robinson v. City of
Edmond, 160 F.3d 1275, 1281 (10th Cir. 1998)).
court has a duty to evaluate the reasonableness of every fee
request. Hensley v. Eckerhart, 461 U.S. 424, 433-34
(1983). The EAJA, 28 U.S.C. § 2412, 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 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). As the Commissioner points out, the Tenth
Circuit has explained that a court “should approach
this reasonableness inquiry much as a senior partner in a
private law firm would review the reports of subordinate
attorneys when billing clients.” (Comm'r Resp. 2)
(quoting Robinson, 160 F.3d at 1281).
party seeking attorney fees bears the burden of proving that
its 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
Reply, Plaintiff's counsel explained that the attorney
who had represented her before the Commissioner “has
not represented claimants before the [federal district court]
and has no experience writing arguments at that level.”
(Doc. 13, p.2) (hereinafter Pl. Reply). Therefore, he
explained, “a separate review of the record before the
Court was required by [plaintiff's counsel before the
district court] in order for them to adequately draft
Plaintiff's initial brief. This was specifically
necessary in order for counsel to outline the medical
evidence for the Court [sic] as well as reference relevant
portions of the record in the argument sections of the
brief.” Id. He concluded that “[w]hile
it may be unfortunate for Defendant that counsels' office
has separate attorneys that represent claimants before [the
Social Security Administration and the federal district
court], there is nothing that is detrimental to the client
where her counsel specialize with regard to different levels
of representation.” Id.
counsel's argument reveals the unreasonableness of the
fees requested. While there may be some benefit to the client
where attorneys within a firm specialize in different levels
of representation, as the Commissioner argues it would be
improper for a firm to charge its client for the time spent
in bringing new attorneys up to speed on a case where the
firm chooses to use different counsel in different phases of
the litigation. See, e.g., Lowerre v.
Colvin, No. 12-218E, 2014 WL 3529987, at *2 (W.D. Pa.
July 15, 2014) (unpublished) (disallowing “duplicative
work created by two attorneys leaving counsel's firm and
each newly assigned attorney becoming familiar with the
case”). Where it would not be appropriate to charge a
client for time expended, it is not reasonable to charge the
client's adversary. Robinson, 160 F.3d at 1281
(a court examines whether the tasks at issue would be billed
to a paying client).
time records reveal that on March 20 and 21, 2018 counsel
spent 8.5 hours reviewing the transcript of this case. (Pl.
Mot., Attach. 3). Another attorney spent .75 hours reviewing
the draft brief and the ALJ's decision on March 27, 1
hour reviewing and summarizing the transcript on March 28,
1.25 hours reviewing and summarizing testimony on March 29,
and .75 hours on March 30 to finish the review, resulting in
a total of 12.25 hours reviewing and summarizing the
transcript of this case. Id. The court recognizes
that some of that time would have been necessary even if the
attorneys had represented Plaintiff before the Commissioner,
but it finds that 6.25 hours of that time is excessive.
the court finds that a reasonable amount of time expended
before this court is 33.00 hours (39.25 hours less 6.25
hours). At a rate of $191.25 per hour, the court ...