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 pursuant to The Equal Access to Justice Act.
(EAJA) (28 U.S.C. § 2412) (Doc. 16). The Commissioner
admits that a fee award is proper but argues that the amount
requested is unreasonable because the 7.5 hours of law clerk
time spent summarizing the transcript and preparing a
statement of facts was duplicative of the
“approximately 5 hours” (4.7 hours) the attorney
spent “reviewing the transcript [(2.5 hours)], and then
reviewing and editing the statement of facts [(2.2
hours)].” (Doc. 17, p.2) (citing Doc. 16, Attach. 3,
pp.1, 2). The court finds no duplicative work here.
Therefore, the court GRANTS Plaintiff's motion for fees
for 16.10 attorney hours at the rate of $193.75 and 7.5 law
clerk hours at the rate of $100.00, resulting in a fee award
of $3, 869.38 as explained hereinafter.
sought review of the ALJ's decision denying benefits.
(Doc. 1). The Commissioner answered and filed the transcript
with the court. (Docs. 9, 10). After Plaintiff filed her
Social Security Brief (Doc. 11), the Commissioner filed a
motion for remand (Doc. 12) and the parties filed an agreed
order reversing and remanding the case for further
proceedings, which the court signed. (Doc. 13). The court
entered judgment remanding the case pursuant to sentence four
of 42 U.S.C. § 405. (Doc. 14). Plaintiff now seeks
payment of attorney fees pursuant to the EAJA. (Doc. 16).
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
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. 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
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
Commissioner attacks only the reasonableness of the law clerk
hours, which he argues are duplicative of 4.7 hours of the
attorney. (Doc. 17, pp.2-3). He argues, “the attorney
hours in this case were reasonable, but the law clerk hours
were duplicative, meaning that the fee awarded should be no
more than $3, 119.38.” Id. at 3. Plaintiff
rather than charging attorney time to become familiar with
the transcript, Plaintiff's counsel employed a law clerk
to summarize the transcript, thus resulting in only 4.70
hours of attorney time required to review the
transcript-including the law clerk's summary-research the
law, and prepare an outline of the arguments. Under these
circumstances, the time billed for the law clerk is neither
duplicative nor excessive.
(Doc. 18, p.3) (citing Folk v. Berryhill, No.
16-01433-JAR, slip opinion (D. Kan. Nov. 22, 2017);
Richey v. Astrue, No. CIV-06-1323-C, 2008 WL
2199501, at *2 (W.D. Okla. May 27, 2008); Lemons v.
Astrue, No. CIV-08-002-JHP, 2010 WL 6971890, at *1 (E.D.
Okla. Dec. 1, 2010)). She quotes Judge Robinson for the
proposition that “[t]he hourly rate difference between
attorney and law clerk time balances any duplicative work
concerns.” Folk, slip opinion.
court agrees with Judge Robinson's analysis. Reviewing a
Social Security record is tedious and time-consuming. Having
a law clerk review the record initially, summarize it, and
provide a preliminary statement of facts enables the attorney
to organize his review, focusing on areas of the transcript
which appear to be more useful and productive for his case.
He can then merely edit the statement of facts, as he did
here, rather than preparing a new statement of facts for his
Brief. Moreover, the Commissioner's argument that
“the attorney's review and editing of [the law
clerk's] five-page Statement of Facts took almost as much
time as it took the law clerk to draft those five
pages” (Doc. 17, pp.2-3) does not account for the fact
that before editing the Statement of Facts the attorney had
already performed his (focused) review of the transcript,
researched the law his focused review found relevant, and
prepared an outline of his arguments, all in 2 and one-half
hours. (Doc. 16, Attach. 3, p.1). Therefore, when he reviewed
and edited the law ...