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Lewis v. Colvin

United States District Court, N.D. Georgia, Atlanta Division

May 31, 2017

CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.



         This matter is before the Court on Plaintiff Rocheal Lewis's (“Plaintiff”) Motion for Attorney's Fees Pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412 [21] (the “Motion”).

         I. BACKGROUND

         On July 26, 2016, the Court issued its Order [19] vacating and remanding the Commissioner's decision under sentence four of 42 U.S.C. § 405(g). On September 13, 2016, Plaintiff, through her counsel, filed the Motion seeking an attorney's fee award. Plaintiff requests a total award of $7, 547.31 for 36.7 hours of attorney work at $189.39 per hour, and 8 hours of paralegal work at $75 per hour. ([21.1] at 3). Plaintiff also requests $19.41 in expenses for serving her Complaint by Certified Mail. ([21.1] at 3).


         The EAJA provides that “a court shall award to a prevailing party other than the United States” reasonable attorney's fees and costs “incurred by that party in any civil action . . . brought by or against the United States in any court having jurisdiction of that action, unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust.” 28 U.S.C. § 2412(d)(1)(A). “To recover attorneys' fees under the EAJA, plaintiff must show that: (1) she is a prevailing party; (2) the government's position was not substantially justified; (3) there are no ‘special circumstances' that would make a fee award unjust; and (4) the fee application was submitted within 30 days of final judgment in the action and is supported by an itemized statement.” Cohen v. Swacina, No. 07-cv-81049, 2009 WL 799430, at *2 (S.D. Fla. Mar. 24, 2009).

         The Court finds, and the Commissioner acknowledges, that these conditions are met and that Plaintiff is entitled to attorney's fees under the EAJA. ([22] at 4). The Commissioner, however, challenges the reasonableness of the fee amount claimed, on the grounds that Plaintiff “seeks compensation for an excessive number of hours.” ([22] at 1). The Commissioner also requests that the amount awarded be payable directly to Plaintiff.

         A. Reasonableness of the Attorney's Fees Sought

         The EAJA provides for recovery of “reasonable attorney's fees.” 28 U.S.C. § 2412(d)(2)(A). Plaintiff bears the burden of showing that the hours requested are reasonable. See Hensley v. Eckerhart, 461 U.S. 424, 434 (1983). Reasonable hours are “billable hours-that is, work that would be paid for by a reasonable client of means seriously intent on vindicating the rights in issue.” Perkins v. Mobile Hous. Bd., 847 F.2d 735, 738 (11th Cir. 1988). “[A] court may reduce excessive, redundant or otherwise unnecessary hours in the exercise of billing judgment.” Id. at 738. “Courts are not authorized to be generous with the money of others, and it is as much the duty of courts to see that excessive fees and expenses are not awarded as it is to see that an adequate amount is awarded.” Am. Civil Liberties Union of Georgia v. Barnes, 168 F.3d 423, 428 (11th Cir. 1999).

         1. Clerical Work

         The Commissioner argues that Plaintiff improperly seeks attorney's fees for “non-legal clerical tasks.” ([22] at 4). “[A] fee applicant is not entitled to compensation at an attorney's rate simply because an attorney undertook tasks which were mundane, clerical or which did not require the full exercise of an attorney's education and judgment.” Norman v. Hous. Auth. of City of Montgomery, 836 F.2d 1292, 1306 (11th Cir. 1988). “The distinction between those tasks that are billable and those that are not . . . turns on whether a non-lawyer would lack the training, experience, and judgment to complete the task at issue.” Allen v. Colvin, No. 1:15-cv-130-ODE-JSA, at 3 (N.D.Ga. Oct. 18, 2016); see Ward v. Astrue, No. 3:11-cv-523, 2012 WL 1820578, at *3 (M.D. Fla. May 18, 2012) (denying recovery of attorney's fees for “tasks encompass[ing] matters that do not require counsel's use of her legal skills”). “[P]aralegal time is recoverable as part of a prevailing party's award for attorney's fees and expenses, but only to the extent that the paralegal performs work traditionally done by an attorney.Jean v. Nelson, 863 F.2d 759, 778 (11th Cir. 1988).

         Plaintiff's counsel exercised good “billing judgment” in declining to bill the Commissioner for thirty-eight (38) clerical tasks performed in this case. Barnes, 168 F.3d at 428. Having reviewed the billing records submitted by Plaintiff's counsel, however, the Court declines to allow recovery for the following additional clerical work described in the ledger: “Assign Attorney writer to access/write reply brief” (0.2 hours), “Review Civil case terminated” (0.1 hours), “Files receive, reviewed and processed from referral source for Attorney review” (0.6 hours), “Telephone cal[l] with Client re: Assistance with In Forma Pauperis Application” (0.4 hours), “Federal court forms packet sent to Client via Right Signature” (0.2 hours), “Download, file and save transcript in Seventeen (17) Parts” (0.6 hours), “Strip PDF/A, combine, OCR and live bookmark Federal Court transcript” (1.1 hours), and “Federal Court-Remand Referral back to Referral Source” (0.3 hours). This constitutes 0.3 hours of attorney work ($56.79) and 3.2 hours of paralegal work ($240) for which Plaintiff is not entitled to recover fees.[1]

         2. Paralegal Billing Rate

         The Commissioner, in his response brief, argued that Plaintiff “provided no basis for the paralegal rate for which she seeks compensation-$75 an hour.” ([22] at 8). Plaintiff, in her reply, provided the Court with the 2015 National Utilization and Compensation Survey Report, published by the National Association of Legal Assistants. ([23.2]). The report identifies paralegal billing rates of $128 per hour in Georgia and $111 per hour in New York, where Plaintiff's counsel is located. ([23.2] at 5). Plaintiff's paralegal rate of $75 per hour is reasonable and adequately supported. See Allen v. Colvin, No. 1:15-cv-130-ODE-JSA, at 9 (N.D.Ga. Oct. 18, 2016) (relying on the 2015 National Utilization and Compensation Survey Report to establish the market rate for paralegal work in Georgia, and concluding that, ...

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