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Sigmon v. Saul

United States District Court, D. Kansas

October 9, 2019

CAROLYN J. SIGMON, Plaintiff,
v.
ANDREW M. SAUL, Commissioner of Social Security, Defendant.

          MEMORANDUM AND ORDER

          John W. Lungstrum, United States District Judge

         This matter is before the court on Plaintiff's Motion for Attorney's Fees. (Doc. 18). Plaintiff seeks $8, 450.00 in fees pursuant to the Equal Access to Justice Act (EAJA). 28 U.S.C. § 2412.[1] The Commissioner argues that a fee award is not proper because both the Administrative Law Judge's position below and the Commissioner's position before this court were substantially justified. He also argues that even if the court finds the government's position was not substantially justified, the amount requested as fees is unreasonable because an unreasonable amount of time was expended in reviewing the case record and preparing Plaintiff's Social Security Brief. (Doc. 19). The court finds that the position of the Commissioner both below and before this court was not substantially justified as a matter of law, and that Plaintiff has met her burden to establish the amount of time billed in preparation of her Social Security Brief was reasonable. Therefore, the court GRANTS Plaintiff's motion for attorney fees for 47.25 hours at the rate of $200.00, resulting in a fee award of $9, 450.00 as explained herein.

         I. Background

         Plaintiff sought review of the Commissioner's decision denying disability insurance benefits and supplemental security income. (Doc. 1). The Commissioner answered and filed the transcript of record with the court. (Doc. 10). After briefing was complete, this court determined that the case of Hackett v. Barnhart, 395 F.3d 1168, 1176 (10th Cir. 2005) is binding precedent precluding as a matter of law the ALJ's finding that Plaintiff can perform her past work as a mail clerk, which requires level three reasoning, when the ALJ found that she is limited to simple, routine, and repetitive tasks and did not explain how that limitation is consistent with level three reasoning. (Doc. 16). Plaintiff now seeks payment of attorney fees pursuant to the EAJA. (Doc. 18).

         Plaintiffs counsel, Mr. Lowell C. Paul, has established that he represented Plaintiff in this matter and he expended forty-two and twenty-five hundredths hours in representing Plaintiff at the rate of $200.00 per hour. (Doc. 18, Attach. 1, p.2).

         II. Legal Standard

         The 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 his position. Id; Estate of Smith, 930 F.2d at 1501. 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).

         The 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 Cir. 1989).

         III. Discussion

         This case presents in a posture which bears explanation in that the Commissioner filed his response (Doc. 19) to Plaintiff's motion before Plaintiff filed her memorandum in support of her motion, and before that memorandum was due. (D. Kan. R. 54.2). Subsequently, Plaintiff filed her memorandum in support of her motion along with a statement of consultation in accordance with Local Rule 54.2, the Commissioner has not filed any further response, and the motion is ripe for the court's consideration.

         This posture results from the Commissioner's apparent confusion regarding the procedure in Local Rule 54.2 for requesting statutory attorney fees. “A request for attorney's fees should not result in a second major litigation.” Hensley, 461 U.S. at 437. The court enacted D. Kan. Rule 54.2 requiring 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). The rule contemplates that the moving party may file her 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.” D. Kan. R. 54.2(b), (c).

         Here, the parties did not reach an agreement. However, the Commissioner did not wait for Plaintiff to file her memorandum in accordance with the local rule, but filed his objection, resulting in Plaintiff's memorandum filling the purpose of both support for her motion and a reply to the Commissioner's objection.

         A. The Commissioner's Position Was Not Substantially Justified

         As the Commissioner argues, a reasonable position can be substantially justified even if it is ultimately found incorrect. Pierce v. Underwood, 487 U.S. 552, 566 (1988); see also, Lopez v. Berryhill, 690 Fed.Appx. 613, 614 ...


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