Theis v. Astrue

828 F. Supp. 2d 1006, 2011 U.S. Dist. LEXIS 127119, 2011 WL 5216544
CourtDistrict Court, E.D. Arkansas
DecidedNovember 2, 2011
DocketNo. 3:10CV00193 JLH
StatusPublished
Cited by11 cases

This text of 828 F. Supp. 2d 1006 (Theis v. Astrue) is published on Counsel Stack Legal Research, covering District Court, E.D. Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Theis v. Astrue, 828 F. Supp. 2d 1006, 2011 U.S. Dist. LEXIS 127119, 2011 WL 5216544 (E.D. Ark. 2011).

Opinion

OPINION AND ORDER

J. LEON HOLMES, District Judge.

This is a Social Security disability appeal in which the Court found that the administrative law judge committed error and remanded under sentence four of 42 U.S.C. § 405(g). The plaintiff has filed a petition for attorney’s fees pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412. She requests a fee in the amount of $8,411.77, calculated on the basis of 46.25 hours multiplied by $181.88 per hour. She bases that hourly rate on the statutory maximum of $125 per hour adjusted by dividing the Consumer Price Index-All Urban Consumers’ rate for August of 2011 by the cost of living for March of 1996 and multiplying that figure by 125. She also requests payment of $17.13 in expenses.

The Commissioner has responded and concedes that the plaintiff is entitled to reimbursement of attorney’s fees under the Equal Access to Justice Act but contends that the application is excessive and poorly documented. Specifically, the Commissioner objects to fifteen telephone calls each of which was billed at 0.5 hours for a total of 7.5 hours for attorney time to talk on the telephone regarding a Social Securi[1008]*1008ty disability case that was litigated entirely in writing. The Commissioner also objects to duplicate requests for a total of 2.0 hours of attorney time for consultation on October 9, 2010; October 12, 2010; and January 21, 2011. The Commissioner further objects to reimbursement for the 1.5 hours spent by the lawyer to draft unspecified documents on October 7, 2010; October 12, 2010; and October 21, 2010. The Commissioner contends that the proposed hourly rate is excessive and argues for an hourly rate of $175.06 for allowable hours spent in 2010 and $179.51 for allowable hours spent in 2011. Like the plaintiff, the Commissioner relies upon the Consumer Price Index but contends that the 2010 annual rate and 2011 mid-year rate should be used because they cover the time period during which the plaintiffs attorney performed the work for which the plaintiff is seeking reimbursement.

In reply, the petitioner has submitted an addendum that explains in more detail entries that were described only generally in the initial submission. The addendum specifies that each of the telephone calls was a phone call with the client and each consultation was a consultation with the client. The addendum also specifies the documents that were drafted on each of the dates that previously had been described only as “drafted document.” The first of these entries — a letter to the Social Security Administration — was billed at 0.5 hours on April 7, 2010, but the addendum notes that entry should not have been included. No award will be made for that entry.

Under the Equal Access to Justice Act, a prevailing social security claimant is entitled to an award of reasonable attorney’s fees and expenses unless the Commissioner’s position in denying benefits was “substantially justified” or special circumstances make an award unjust. 28 U.S.C. § 2412(d)(1)(A). In this case, the Commissioner concedes that the plaintiff is entitled to an award of attorney’s fees pursuant to the Act. See Shalala v. Schaefer, 509 U.S. 292, 300-02, 113 S.Ct. 2625, 2631-32, 125 L.Ed.2d 239 (1993) (holding that a claimant who wins a sentence-four remand order and judgment is a prevailing party entitled to Equal Access to Justice Act fees).

Attorney’s fees may not be awarded in excess of $125.00 per hour — the maximum statutory rate under the Act — unless the Court finds that an increase in the cost of living or a special factor justifies a higher fee. 28 U.S.C. § 2412(d)(2)(A). The decision to increase the hourly rate is not automatic and remains at the discretion of the district court. McNulty v. Sullivan, 886 F.2d 1074, 1074 (8th Cir.1989); see also Hickey v. Secretary of HHS, 923 F.2d 585, 586 (8th Cir.1991) (In reviewing a request for attorney’s fees, “[t]he district court [is] ‘in the best position to evaluate counsel’s services and fee request, particularly when the court has had the opportunity to observe first-hand counsel’s representation on the substantive aspects of the disability claim.’ ”) (quoting Cotter v. Bowen, 879 F.2d 359, 361 (8th Cir.1989), abrogated on other grounds by Gisbrecht v. Barnhart, 535 U.S. 789, 122 S.Ct. 1817, 152 L.Ed.2d 996 (2002)). However, in Johnson v. Sullivan, 919 F.2d 503, 505 (8th Cir.1990), the Eight Circuit held where “an EAJA petitioner presents uncontested proof of an increase in the cost of living sufficient to justify hourly attorney’s fees of more than $75 per hour, enhanced fees should be awarded.”1

[1009]*1009The plaintiff has offered uncontested proof of an increase in the cost of living in the Eastern District of Arkansas sufficient to justify an hourly rate in excess of $125.00 per hour. Johnson, 919 F.2d at 504 (“We believe that the Consumer Price Index constitutes ‘proper proof of the increased cost of living since the EAJA’s enactment and justifies an award of attorney’s fees greater than $75 per hour in these cases.”). However, the Court rejects the notion that attorney’s fees should be determined using an hourly rate calculated simply by multiplying $125 per hour by a number derived from the Consumer Price Index. Although the Consumer Price Index provides proof warranting an enhanced fee award, the Court’s discretion is not bound by the exact numerical values of the rates provided in the Index. See King v. Astrue, No. 08-2068, 2010 WL 143785, at *3 (W.D.Ark. Jan. 11, 2010) (rejecting the plaintiffs argument that the Consumer Price Index rate should be automatically awarded). That type of calculation results in an hourly rate of some anomalous number of dollars and cents, such as the hourly rates for which the parties here advocate — $181.88, $179.51, and $175.06. Attorney’s fees are not determined by using hourly rates of such anomalous dollar and cents amounts. Congress intended that plaintiffs receive reasonable fee awards pursuant to the Equal Access to Justice Act, not attorney’s fees based on the kinds of irregular hourly rates for which the parties argue. An attorney’s fee is an estimate of what is a reasonable fee for the service rendered considering a number of relevant factors such as the time and labor involved, the skill needed to provide the service properly, the fee customarily charged for that service in the locality, the experience and ability of the attorney providing the service, and whether the fee is fixed or contingent. See Ark. Rules of Profl Conduct 1.5.

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Bluebook (online)
828 F. Supp. 2d 1006, 2011 U.S. Dist. LEXIS 127119, 2011 WL 5216544, Counsel Stack Legal Research, https://law.counselstack.com/opinion/theis-v-astrue-ared-2011.