2004 | Cited 0 times | D. Maine | June 15, 2004


The plaintiff has applied for an award of attorney feestotaling $9,950 pursuant to the Equal Access to Justice Act("EAJA"), 28 U.S.C. § 2412, in this action in which, with respectto her Social Security Disability ("SSD") appeal, she obtained aremand for further proceedings before the Social SecurityAdministration. See generally EAJA Application for Fees andExpenses ("Application") (Docket No. 15).

The commissioner concedes that the plaintiff is a prevailingparty entitled to an award of attorney fees but contests certainaspects of the total award sought. See generally Defendant'sPartial Opposition to Plaintiff's Application for Attorney's FeesUnder the Equal Access to Justice Act ("Opposition") (Docket No.16). I address each of her points in turn:

1. That the hourly rate of $160 sought for work performed byplaintiff's counsel Francis M. Jackson is based on a flawedconsumer price index ("CPI") analysis (adjusted as of 2004,subsequent to when most of the work was performed), and by the commissioner'scalculations should be reduced to $156. See id. at 2-3. Theplaintiff states that she disagrees but is willing to forgoextended discussion of the matter, leaving it to the court'sdiscretion. See EAJA Reply Memorandum ("Reply") (Docket No. 19)at 4. I take this to be a concession. In any event, as thecommissioner points out, see Opposition at 2-3, the lion'sshare of the work in question (all but 1.1 of the originallybilled 72.8 hours) was performed in 2003, see Invoice datedApril 8, 2004 submitted to Jeffrey N. Greene from Jackson &MacNichol ("Invoice"), attached as Exh. A to Application, andaccordingly should be adjusted as of then. The plaintiff does notcontest the commissioner's method of calculation. See Reply at4. Accordingly, I find an award of $156 per hour for Jackson'swork on this case appropriate.1

2. That the requested hourly rate of $150 for work performed byJackson's associate, Deanna L. White, is unreasonable givenWhite's inexperience in Social Security cases. See Oppositionat 3-4. As the plaintiff points out, see Reply at 2-4, thecommissioner's position is without merit. The same issue,involving the same associate (White), was resolved unfavorably tothe commissioner in Curtis v. Barnhart, 89 Soc. Sec. Rep. Serv.649 (D. Me. 2003) (rec. dec., aff'd Sept. 11, 2003).

3. That the number of White's hours for which the plaintiffseeks compensation (45.0, voluntarily reduced from 49.7 in anexercise of "billing judgment," see Application at 2) isexcessive given the straightforward nature of the two issues onwhich the decision turned (application of res judicata and themerits of an alternative Step 2 holding) and the fact thatcounsel devoted time to an argument the court ultimately found to be without merit (involving application ofSocial Security Ruling 83-20 ("SSR 83-20")). See Opposition at4.

I am unpersuaded that the number of White's hours for whichcompensation is sought should be further reduced. While the Step2 issue was straightforward, the res judicata issue — which thecourt necessarily had to decide — was not. The plaintiff'sunderlying statement of errors raised a novel issue (the effecton res judicata analysis of the absence of any record of apurported prior application) and appropriately took theprecaution of exploring whether there were (i) constitutionalconcerns and (ii) a question of de facto reopening, given thatthe administrative law judge had proceeded to decide the case onan alternative Step 2 ground. See Plaintiff's ItemizedStatement of Specific Errors (Docket No. 6) at 7-19. Further,while the court ultimately found the SSR 83-20 argumentunpersuasive, the point was colorable and its inclusionreasonable.

For the foregoing reasons, I recommend that the plaintiff beawarded a total of $9,870, representing payment of $3,120 for20.0 hours expended by Jackson (at a rate of $156 per hour) and$6,750 for 45.0 hours expended by White (at a rate of $150 perhour).

1. The commissioner alternatively (albeit weakly) argues thatJackson's hourly fee should be fixed at the statutory cap of $125without any adjustment for inflation. See Opposition at 3. Idecline this invitation. The plaintiff submits adequate evidenceto establish that (i) prevailing market rates for services suchas Jackson rendered in this case exceed $125 per hour, and (ii)CPI data justify adjustment of the statutory cap to account forinflation. See Exhs. B-C to Application.

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