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Heard v. Berryhill

United States District Court, S.D. Georgia, Augusta Division

February 26, 2019

GLENDA HEARD, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security Administration, Defendant.

          MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          BRIAN K. EPPS JUDGE

         Before the Court is Plaintiff's motion for attorneys' fees pursuant to the Equal Access to Justice Act (“EAJA”). (Doc. no. 21.) For the reasons set forth below, the Court REPORTS and RECOMMENDS Plaintiff's motion for attorneys' fees be GRANTED IN PART, and Plaintiff be AWARDED attorneys' fees in the amount of $4, 879.12.

         I. DISCUSSION

         On July 10, 2018, Chief United States District Judge J. Randal Hall granted a reversal and remand pursuant to sentence four of 42 U.S.C. § 405(g) and judgment was entered in Plaintiff's favor. (Doc. nos. 17, 19, 20.) Plaintiff now requests $9, 276.85 in attorneys' fees for 46.42 hours of representation, consisting of 5.25 hours, including fee briefing, from Charles L. Martin, 35.17 hours from Denise Sarnoff, and 6.00 hours from Michel Phillips. (Doc. no. 21-3, p. 4; doc. nos. 21, 23.) The Commissioner argues Ms. Sarnoff should be compensated at the paralegal rate, not the attorney rate, because she is not admitted to the bar of the State of Georgia, not admitted to practice in this Court, and did not seek admission to appear pro hac vice. (Doc. no. 22, pp. 2-4.) Although attorney Phillips is also not admitted to this Court, he is admitted to the State Bar of Georgia and appears to work at the same firm as Plaintiff's attorney of record, Mr. Martin; the Commissioner does not contest his request for reimbursement at attorney rates. (See id.; see also doc. no. 21-5.) The Commissioner further argues for “a reduction of at least 7 hours to account for redundancies in work” because one attorney initially reviewed the merits of the case but a different attorney prepared the brief and an unnecessary medical record index. (Doc. no. 22, pp. 4-5.)

         A. Ms. Sarnoff is Entitled to Compensation at the Paralegal Rate

         The EAJA provides that “a court shall award to a prevailing party, other than the United States, fees and other expenses, in addition to any costs awarded . . . 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). A district court can reduce EAJA fees for attorneys who are not members of the court's bar, and do not move for pro hac vice admission. See Zech v. Comm'r of Soc. Sec., 680 Fed.Appx. 858, 859-60 (11th Cir. 2017) (per curiam) (finding no abuse of discretion in reducing compensation rates of two attorneys to paralegal rates because attorneys were not admitted to bar of court and did not move for pro hac vice admission despite existence of Local Rules containing requirements for appearing and participating in cases); Callaway v. Berryhill, CV 115-166, 2017 WL 10821425, treated as Report and Recommendation and adopted by, 2019 WL 591461 (S.D. Ga. Feb. 13, 2019) (Hall, C.J.) (applying paralegal rate to services of non-admitted attorney); see also Zabala v. Comm'r of Soc. Sec., No. 6:17cv-628, 2018 WL 6589837, at *2 (M.D. Fla. Dec. 14, 2018) (collecting cases supporting application of “paralegal rate to services of non-admitted attorney in cases, where, as here, admission was never sought”). The district court retains discretion to award compensation within a wide range of permissible options. Zech, 680 Fed.Appx. at 860.

         Here, the only attorney of record for Plaintiff is Mr. Martin. As Ms. Sarnoff is an attorney not admitted to practice law in this District, not licensed to practice law in Georgia, and not admitted pro hac vice, the Court exercises its discretion to recommend compensation at a paralegal rate. The rate at which paralegal services are to be compensated must be in line with “prevailing market rates.” See Richlin Sec. Serv. Co. v. Chertoff, 553 U.S. 571, 590 (2008). The Court therefore applies a $75.00 hourly rate for paralegal services, an amount found to be reasonable in this Circuit. See Callaway, 2019 WL 591461, at *1; Zabala, 2018 WL 6589837, at *2. However, as the amount of work and time spent is consistent with paralegal work, the Court declines to reduce Ms. Sarnoff's hours as requested by the Commissioner based on preparation of a medical index and redundancy of attorney work.

         Accordingly, the Court recommends granting in part Plaintiff's motion (doc. no. 21), and awarding attorneys' fees in the amount of $4, 879.12, based on the following:

         Mr. Martin- $1, 052.47

1.4 hours @ $198.15
1.4 hours @ $199.90
0.4 hours @ $201.15
2.05 hours @ $202.31

         Mr. ...


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