Martin v. Colvin

198 F. Supp. 3d 1248, 2016 U.S. Dist. LEXIS 99832, 2016 WL 4060294
CourtDistrict Court, D. Kansas
DecidedJuly 29, 2016
DocketCIVIL ACTION No. 15-1037-JWL
StatusPublished
Cited by7 cases

This text of 198 F. Supp. 3d 1248 (Martin v. Colvin) is published on Counsel Stack Legal Research, covering District Court, D. Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Martin v. Colvin, 198 F. Supp. 3d 1248, 2016 U.S. Dist. LEXIS 99832, 2016 WL 4060294 (D. Kan. 2016).

Opinion

MEMORANDUM AND ORDER

John W. Lungstrum, United States District Judge

This matter is before the court on plaintiffs “Application for Attorney Fees Under The Equal Access to Justice Act” (EAJA) (28 U.S.C. § 2412) (Doc. 29). The Commissioner admits that a fee award is proper, but argues that the amount requested is unreasonable because an unreasonable amount of time was expended in preparing Plaintiffs Social Security Brief. The court finds Plaintiff has not met his burden to establish that the amount -of time billed in preparation of his Social Security Brief was reasonable, and that Plaintiffs counsel erred in calculating the cost of living increase to establish the hourly rate of compensation. Therefore, the court PARTIALLY GRANTS Plaintiffs motion for attorney fees, allowing 55.10 hours at the rate of $188.00, resulting in a fee award of $10,358.80 as explained hereinafter.

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. (Docs. 8, 9). After briefing was complete, this court determined that the ALJ’s “decision simply contains no mention of Dr. Whitmer or of his report, and there is no evaluation of his opinions.” (Doc. 27, p.5). The court entered judgment remanding the case for a proper evaluation. (Doc. 28). Plaintiff now seeks payment of attorney fees pursuant to the EAJA. (Doc. 29).

Plaintiffs counsel, Mr. David H. M. Gray, has established by attachments to his briefs that: (1) he has represented Plaintiff pursuant to a contingency fee agreement since October 3, 2011, (2) his customary hourly rate for such cases is $300.00, and (3) he expended sixty-eight and one-tenth hours in representing plaintiff including: (a) fifty-one and seventy-five hundredths hours reading, ■ researching, and writing plaintiffs brief in the case, (b) ten hours reading, researching, and writing a reply brief, (c) one and one-half of-an hour preparing an EAJA fee brief, and (e) three hours researching and preparing an [1251]*1251EAJA reply brief. Plaintiffs counsel also asserts that the fee cap under the EAJA, adjusted for cost of living increases, is $190.62 per hour.

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, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). The EAJA,1 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). The Commissioner does not argue that the position of the United States was substantially justified.

The party seeking attorney fees bears the burden of proving that his request is reasonable and must “submit evidence supporting the hours worked.” Hensley, 461 U.S. at 433, 434, 103 S.Ct. 1933. 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

A. Arguments

The Commissioner agrees that award of a fee under the EAJA is appropriate in this case but disagrees with the amount of the fee requested. She argues that the court should strike 13 hours from the requested fee because counsel’s “time records do not demonstrate what portion of time was devoted to research, and because Plaintiff has not demonstrated that over 65 hours was reasonable” in arguing the case before this court. (Doc. 30, p.2). She argues that Plaintiffs counsel explained his experience and expertise in dealing with Social Security disability cases, and she asserts that an attorney so well qualified as he should not take over fifty hours to research and write a Social Security brief in a case such as this. Id. She argues that the issues raised in Plaintiffs Brief are common issues in Social Security cases, and such an experienced attorney should need little time to identify the issues, should rely on research performed in earlier cases, and should “handle the case with greater efficiency and with the expenditure of less time.” Id. at 2 (quoting Doc. 29, Attach 2, pp.1-2). She argues that Plaintiffs Social Security Brief reveals that such an experienced attorney should need little research time to update the relevant and controlling legal principles since “every case Plaintiff cited in her [sic] opening brief was at least five years old,.. .most (including all but one of the appellate cases) were more than a decade old,” and [1252]*1252“the majority of the cases Plaintiff cited pre-date 1996.” (Doc. 30, p.3).

Plaintiffs counsel argues that he used “block billing,” that the Commissioner does not argue that the activities which were billed include time which is non-com-pensable under the EAJA, and that the Commissioner cites no authority for discounting fees on the basis of inadequate specification of the time spent. (Doc. 36, pp.1-3). He argues that “the court has sufficient expertise.. .to assess the reasonableness of the time expended preparing Plaintiffs Brief on the basis of the information provided.” Id. at 3. Counsel argues that his expertise required less time than would have been expended by a practitioner of lesser expertise, id. at 4, and that the issues here, although present in many Social Security cases, were not routine and involved arguments regarding error in evaluating fifteen medical opinions. Id. at 5-6. He argues that the record in this case, at 1406 pages, was long and complex and should require more preparation time than the “typical” Social Security case, and that Plaintiffs Social Security Brief, at 36 pages, was long, thus requiring more time to write. Id. at 7-8. And, he argues that the age of the cases upon which an argument relies “is entirely irrelevant to the time expended doing the research. Id at 8.

The court finds that the time involved in briefing was excessive and unreasonable for a case of this level of difficulty for a practitioner of counsel’s experience and expertise. It accepts the Commissioner’s proposal that a reasonable adjustment to correct the time charged is to reduce the time for Plaintiffs Social Security Brief by thirteen hours, or approximately one-fourth.

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Bluebook (online)
198 F. Supp. 3d 1248, 2016 U.S. Dist. LEXIS 99832, 2016 WL 4060294, Counsel Stack Legal Research, https://law.counselstack.com/opinion/martin-v-colvin-ksd-2016.