IRMA CARRILLO RAMIREZ, United States Magistrate Judge.
By order filed September 11, 2012, this matter has been transferred for the conduct of all further proceedings. Before the Court is Plaintiff's Application for Attorney's Fees Under the Equal Access to Justice Act and Memorandum in Support Thereof, filed December 10, 2013 (doc. 27.) Based on the relevant filings, evidence, and applicable law, the motion is
On June 25, 2012, Tracy Neil Hamblen (Plaintiff), through counsel, filed a complaint seeking reversal and remand of the Commissioner's decision denying his application for supplemental security income (SSI) under Title XVI of the Social Security Act. (doc. 1.) On September 12, 2013, the Court entered judgment, reversing and remanding the case for further proceedings. (doc. 24.) Plaintiff then moved for an award of attorney's fees under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412. (doc. 27.)
Under EAJA, the Court must award attorney's fees and expenses if (1) the claimant is the "prevailing party";
Here, as the prevailing party, Plaintiff has requested a total of $12,391.53 in attorney's fees based on 57.2 hours of attorney work for litigating his appeal in federal court and 9.5 hours of attorney work for defending his EAJA application at an hourly rate of $185.78. (docs. 27 at 3, 7; 31 at 11-12.) Counsel has submitted itemized billing statements detailing the time that was devoted to the case. (docs. 27-2; 31-2.)
The Commissioner objects to the hourly rate that Plaintiff seeks, as well as to the number of hours for which he requests compensation. (D. Br. at 1-6.)
Plaintiff requests that the $125 hourly rate under the EAJA be adjusted using the average consumer price index for "all urban consumers" (CPI-U or national CPI). (Pl. Br. at 2.) According to his calculations, using the CPI-U results in an hourly rate of $185.78, which he claims "is quite significantly below [counsel's] actual market rate." (Id. at 3.)
The EAJA provides that "[t]he amount of fees awarded ... shall be based upon prevailing market rates for the kind and quality of the services furnished, except that ... attorney fees shall not be awarded in excess of $125 per hour unless the court determines that an increase in the cost of living or a special factor, such as the limited availability of qualified attorneys for the proceedings involved, justifies a higher fee." 28 U.S.C.A. § 2412(d)(2)(A) (West 2011). The Supreme Court has construed the "cost-of-living" provision as part the statutory cap itself, which it has termed as the "[$125] cap (adjusted for inflation)" or "[$125] per hour (adjusted for inflation)." Pierce v. Underwood, 487 U.S. 552, 571-74, 108 S.Ct. 2541, 101 L.Ed.2d 490 (1988). Based on the statutory language and Congressional intent, the Fifth Circuit has "likewise ... recognize[d]" that the "cost-of-living" and the "special factor" exceptions constitute "two independent prongs for fee adjustment" under the EAJA. Hall v. Shalala, 50 F.3d 367, 369-70 (5th Cir.1995) (citing Baker v. Bowen, 839 F.2d 1075, 1085 n. 4 (5th Cir.1988)).
Regarding the first prong, the Fifth Circuit has held that "[e]xcept in unusual circumstances," "if there is a significant difference in the cost of living since [the enactment of the EAJA] in a particular locale that would justify an increase in the fee, then an increase should be granted." Baker, 839 F.2d at 1084. The award need not track the cost-of-living index for that geographical area, but that index is a significant indicator. Id. The resulting figure is only a maximum rate, however, not a floor, and "a district court, in its discretion, may determine that a fee below the established ceiling is a reasonable attorney's fee award based on the facts of a particular case." Hall, 50 F.3d at 370. Ultimately, in order to satisfy the dual purposes of the EAJA "to ensure that there is sufficient representation for individuals who need it while minimizing the cost of attorneys' fees awards to the taxpayers," "rates should be increased only to the extent necessary to ensure [such] representation and should never exceed the percentage by which the market rate attorney's fees have increased since the statute was enacted in 1981." Baker, 839 F.2d at 1082-84.
While the Fifth Circuit has made it clear that the $125 statutory rate should generally be adjusted for inflation, it has not specifically determined whether courts should apply the national, regional, or local CPI when calculating such an adjustment.
In Baker, five social security claimants successfully appealed the Commissioner's denial of benefits in federal court. Baker, 839 F.2d at 1079. "Each party then petitioned for attorney's fees under the EAJA. In each case, the district court awarded fees at the [then] statutory limit of $75 an hour, but refused to exercise discretion to award fees in excess of that amount." Id. In reviewing a "sampling of social security cases decided in the ... Dallas Division" the previous year, the Fifth Circuit found that "[f]ee awards, based upon virtually identical factors and supporting affidavits ha[d] ranged from $75 to $125, depending not upon the relative merits of the claims, but simply upon the fact that judges ma[de] inconsistent rulings, and fail[ed] to take into account what other courts in the same division ha[d] done." Id. at 1083. The Court explained that "unlike determinations of other `special factors,' the cost of living and the availability of attorneys are problems that affect each litigant within a district to the same degree." Id. Accordingly, it remanded the five cases, holding "that a determination of the appropriateness of [EAJA fee award] increases should be uniform in the Dallas federal courts." Id. at 1079.
In subsequent cases, the Fifth Circuit has reiterated the importance of uniformity in calculating fee adjustments under the EAJA in courts serving the same judicial division or legal market. See, e.g., Hall, 50 F.3d at 368 (stating that "the cost-of-living" and "availability-of-attorneys" factors "should be uniformly applied by the New Orleans district courts" and "invit[ing] the district judges of the Eastern District of Louisiana to address any lack of uniformity in the district and to address the issue with a view toward developing the required uniformity");
After the Fifth Circuit remanded Baker, the Chief Judge for the Northern District of Texas entered an Agreed Order providing that "[u]pon request and proper proof" by a party who was entitled to attorney's fees "under the EAJA in a case involving a
In the years immediately following the Baker Order, courts in the Dallas Division appear to have applied the DFW CPI when awarding attorney's fees in similar cases.
Recently, in Goin v. Colvin, No. 3:12-CV-2471-B, 2013 WL 1797862, at *5 (N.D.Tex. Apr. 29, 2013), the plaintiff (who was represented by the same attorney as in this case) argued that "the national rate [was] the more appropriate and consistent rate applied to" his attorney because he was "an interstate attorney and only a small percentage of his work occurr[ed] in Dallas." He also contended that the national CPI was more reliable than regional CPIs because these "are gathered less frequently, use smaller samples, and are more volatile than the national index." Id. The court agreed with the applicant and held that "[g]iven the government's concession that it and th[e] Court ha[d] accepted the national CPI rates in the past[,] and given [the attorney's] interstate and interregional practice[,] as well as concerns for consistency and reliability, ... the national CPI" was the proper index to apply in that case. Id.
Subsequently, the court in Taylor v. Colvin, No. 3:12-CV-2750-P-BN, 2014 WL 696494, at *2-3 (N.D.Tex. Feb. 21, 2014) (also litigated by the same attorney as in this case), held that the national CPI was the proper index to apply in part because it found that the attorney's "interstate" practice constituted "the same unusual circumstances alleged in Goin," thereby warranting
Plaintiff essentially argues that Goin and Taylor are binding because his attorney is "the very same lawyer" who represented the claimants in those cases. (Pl. Reply at 2; Pl. Supp. Mem. at 1.) He also cites cases from other circuits holding that the CPI-U "provides the most accurate, uniform means to calculate the cost-of-living adjustment" under the EAJA. (Pl. Reply at 1-4.)
In Baker, the Fifth Circuit established a policy of maintaining fee-adjusting uniformity within a legal market or judicial division, and it has consistently reaffirmed that policy. In a post-Baker case, for example, a district court from the Abilene division of the Northern District of Texas denied the applicant's request to utilize the CPI-U and awarded him a lower hourly rate that it considered to be "reasonable and appropriate" in that division. Lopez, 236 Fed.Appx. at 106-07. In his brief to the Fifth Circuit, the applicant argued that Baker's uniformity requirement should be abolished because it did not "work well in practice." See Appellant Brief, 2007 WL 4049333, at *13-14. As in this case, he also claimed that the CPI-U was the proper index to apply because it was "more accurate and less statistically volatile" than the local or regional indices. Id. at *11-12. The Fifth Circuit held that the district court did not abuse its discretion by declining to apply the CPI-U, thereby implicitly declining the invitation to abolish Baker's uniformity policy and to apply the national index in all EAJA cases in this circuit. See Lopez, 236 Fed.Appx. at 107. Since most courts in this division have routinely applied the DFW CPI pursuant to the Baker Agreed Order, application of that index in this case will help maintain the required uniformity.
Second, utilizing a local or regional index in calculating EAJA fee awards best accounts for "the obvious fact that the cost of living, ... is different in different places. If this were not the case, the Bureau of Labor Statistics would not publish multiple indices." Barrow, 2013 WL 2428992, at *1 (citing cases).
Third, in cases such as this where the national CPI is higher than the local CPI, applying the national CPI to "an interstate attorney" that happens to litigate some cases in Dallas while applying the local CPI to attorneys who practice exclusively in the Dallas market would arguably further the type of "arbitrary" EAJA awards that the Fifth Circuit discouraged in Baker. It would also allow the type of windfall contemplated in Porter and Mannino for interstate attorneys by awarding them higher fees for the exact same work and effort by local attorneys handling cases in the same legal market. As plaintiff's counsel explains, "[t]he internet and the ECF filing system now make it possible for lawyers having the necessary substantive-law experience to launch a disability appeal in Dallas, just as easily as in Chicago, Kansas City, St. Louis, Galveston, or Beaumont." (Pl. Reply at 3-4) (emphasis added). With the use of technology, local and out-of-state attorneys may both now litigate social security appeals in Dallas from the comfort of their officers, regardless of where that office is located.
In conclusion, the Court finds that using the DFW CPI in cases from this division, even though it is currently lower than the national CPI, will adequately serve the EAJA's dual purpose of ensuring legal representation for those Dallas residents who need it, by giving sufficient remuneration to all attorneys who provide that representation in this division, while minimizing the cost to taxpayers. See Baker, 839 F.2d at 1083. Accordingly, the applicable hourly rates in this case are $178.64 for work completed in 2012 and $181.44 for work completed in 2013.
The Commissioner claims that 57.2 hours for litigating Plaintiff's case in federal court are "unreasonable" in light of the work done, and requests a reduction to 40 hours. (doc. 30 at 3.)
The Commissioner first argues that the 7 hours requested to conduct "medical research" on September 18, 2012, are unreasonable because the Commissioner "should not have to pay for Plaintiff's attorney's education on any particular matter." (Id. at 4.)
Counsel spent the disputed 7 hours reviewing Plaintiff's medical and psychological records, researching medical terminology, reading the "hearing transcript," conducting legal research regarding the ALJ's failure to consider Plaintiff's bowel incontinence, and drafting a portion of two legal arguments. (See docs. 27-2 at 2; 31 at 9.) Because counsel did not represent Plaintiff during the administrative proceedings (see doc. 31 at 8; see also R. at 23), he could reasonably be expected to spend time reviewing Plaintiff's case, including the medical record and the ALJ's
It was reasonable for counsel to spend time researching Plaintiff's physical and mental impairments to present a well-informed and effective case. As one court has explained, "[t]o determine whether substantial evidence" supports the ALJ's decision, "one must understand and interpret the claimant's medical record, ... [which] may consist of complex medical terminology, medical reports, progress notes, diagnoses, and psychiatric evaluations." Valentin-Negron v. Comm'r of Soc. Sec., No. CIV. 11-1860 MEL, 2012 WL 5948341, at *2 (D.P.R. Nov. 28, 2012) (approving of a consultative session with a medical advisor because it "aid[ed][the] attorney in mounting an informed and effective case"). Notably, the "facts" section of Plaintiff's opening brief contained nearly a dozen footnotes defining key medical terms and explaining their significance to the Court, indicating the utility of counsel's "medical research." (See doc. 19 at 3-6.)
Lastly, counsel also spent a portion of the 7 hours conducting legal research and drafting part of argument II of Plaintiff's opening brief regarding the "ALJ's failure to accommodate or properly evaluate [Plaintiff's] bowel accidents." (docs. 19 at 13-20; 27-2 at 2.) This argument assisted the Court in finding that the ALJ committed reversible error by failing to consider and incorporate any resulting limitations caused by Plaintiff's bowel incontinence in his RFC assessment. See Hamblen v. Colvin, No. 3:12-CV-2009-BH, 2013 WL 4858750, at *14 (N.D.Tex. Sept. 12, 2013). Given the thoroughness of Plaintiff's brief generally and his winning argument in particular, the 7 hours requested for September 18, 2012, are reasonable and will not be reduced.
The Commissioner claims the 11.9 hours counsel spent drafting "argument V" on September 22 and 23, 2012, are unreasonable because the argument "equated to less than two pages." (doc. 30 at 4.) She further contends that the time counsel spent "preparing the table of authorities and editing footnotes" is not compensable because those activities constitute "clerical tasks." (Id.)
Counsel spent the disputed 11.9 hours reviewing a psychological consultant's report, drafting the introduction of the "argument" section of Plaintiff's opening brief, completing arguments IV and V, revising and streamlining the entire brief — including the footnotes, and verifying the "proper preparation" of the table of authorities. (doc. 27-2 at 3-4.) Plaintiff's successful summary judgment brief was 33 pages long and contained five issues for review. (See doc. 19.) The brief presented
In sum, considering all of the work performed, the 57.2 hours requested for litigating Plaintiff's case in federal court are reasonable and will not be reduced. See Bentley, 2011 WL 2923970, at *2 (awarding 57.5 hours "that counsel reasonably and necessarily expended in th[e] case"); Sweat v. Barnhart, No. 3-05-CV-0329-M, slip op. at 4 (N.D.Tex. Aug. 27, 2007) (approving of 66.1 hours that counsel "reasonably and necessarily expended ... on the [claimant's] successful appeal").
Plaintiff's Application for Attorney's Fees Under the Equal Access to Justice Act and Memorandum in Support Thereof, filed December 10, 2013 (doc. 27),
(1) 54.8 hours of attorney work for litigating Plaintiff's appeal in 2012 at an hourly rate of $178.64 ($9,789.47);
(2) 2.4 hours of attorney work for litigating the appeal in 2013 at an hourly rate of $185.78 ($445.87); and
(3) 9.5 hours for defending Plaintiff's EAJA attorney's fees application in 2013 at an hourly rate of $185.78 ($1,764.91).
