United States District Court, D. Maine
RECOMMENDED DECISION ON MOTION FOR EAJA ATTORNEY
H. RICH III UNITED STATES MAGISTRATE JUDGE
plaintiff seeks a fee award pursuant to the Equal Access to
Justice Act (“EAJA”), 28 U.S.C. § 2412(d),
of $3, 286.83 for 7.25 hours of attorney time and 17.2 hours
of paralegal time expended in connection with this Social
Security benefits appeal. See EAJA Application for
Fees and Expenses (“Motion”) (ECF No. 20) &
[Fee Invoice], Exh. A (ECF No. 20-1) thereto, at . The
commissioner objects solely to the $110 hourly rate sought
for paralegal time, arguing that the plaintiff fails to meet
her burden of justifying a rate higher than the $90 hourly
this court has awarded in EAJA fees for paralegal time in
recent Social Security appeal cases. See
Defendant's Opposition to Plaintiff's EAJA
Application for Fees and Expenses (“Opposition”)
(ECF No. 21) at 2-3. I agree with the commissioner and,
accordingly, recommend that the court grant the Motion in
part, reducing the award to $2, 942.83, representing
compensation for 7.25 hours of attorney time at $192.39 per
hour and 17.2 hours of paralegal time at $90 per hour.
Applicable Legal Standard
EAJA provides, in relevant part:
[A] court shall award to a prevailing party other than the
United States fees and other expenses . . . incurred by that
party in any civil action . . . including proceedings for
judicial review of agency 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). The EAJA allows fee
reimbursement to a prevailing party only for
“reasonable fees and expenses of attorneys[.]”
Id. § 2412(b). “[A] prevailing party that
satisfies EAJA's other requirements may recover its
paralegal fees from the Government at prevailing market
rates.” Richlin Sec. Serv. Co. v. Chertoff,
553 U.S. 571, 590 (2008). “The plaintiffs bear the
burden of establishing the reasonableness of the rates and
hours submitted in their application for fees.”
Mason v. Me. Dep't of Corr., 387 F.Supp.2d 57,
60 (D. Me. 2005).
commissioner concedes that an EAJA award is due in this case
and does not contest the total time for which fees are sought
or the hourly rate of $192.39 for attorney time. See
Opposition at 1-2.
commissioner notes, see id. at 2, this court
recently has awarded EAJA fees for paralegal time at $90 per
hour in Social Security appeal cases, see, e.g.,
Order on Application for EAJA Fees and Expenses
(“Pelletier Order”) (ECF No. 23),
Pelletier v. Comm'r of Soc. Sec., No.
1:17-cv-000073-NT (D. Me. Dec. 20, 2017); Miller v. Soc.
Sec. Admin. Comm'r, 1:16-cv-00503-JDL, 2017 WL
3597477, at *2 (D. Me. Aug. 21, 2017); Staples v.
Berryhill, No. 2:15-cv-00392-DBH, 2017 WL 2570890, at *6
(D. Me. June 13, 2017) (rec. dec., aff'd July 3,
plaintiff supports her bid for an award for paralegal time at
the rate of $110 per hour with an affidavit in which attorney
Francis Jackson avers that “the rate for paralegal
work, $110.00 per hour, is well below the market rate for
paralegal work in Portland in a federal court case[, ]”
citing Nationwide Payment Solutions, LLC v.
Plunkett, No. 2:09-cv-600-GZS, 2012 WL 234852 (D. Me.
Jan. 24, 2012) (rec. dec., aff'd Feb. 15, 2012),
for the proposition that this court approved paralegal fees
at the rate of $112 for work performed in April 2011.
Affidavit in Support of Application for EAJA Fees (ECF No.
20-2), attached to Motion, ¶ 6.
as the commissioner observes, see Opposition at 3,
this court has rejected prior bids for an increase in the
compensable paralegal hourly rate for purposes of EAJA awards
in Social Security appeal cases based on a similar showing by
the same plaintiff's attorney, see Pelletier
Order (rejecting request for EAJA fee award for paralegal
time at $110 per hour; holding that plaintiff had failed to
meet her burden of establishing that market rate in Maine for
paralegal services was different than $90 per hour);
Perez v. Astrue, No. 2:11-cv-244-NT, 2012 WL
1184426, at *1 (D. Me. Apr. 6, 2012) (rec. dec.,
aff'd May 10, 2012) (plaintiff's attorney
averred in his affidavit that “[a] rate of $100.00 per
hour for paralegal work in the Portland market is . . .
reasonable[, ]” and plaintiff cited three cases from
this court, including Nationwide, for that
proposition) (citation and internal quotation marks omitted);
Pearson v. Astrue, Civil No. 1:11-CV-252-DBH, 2012
WL 837243, at *1 (D. Me. Mar. 12, 2012) (plaintiff's
attorney's “one-line description of $100 as a
reasonable market rate for [paralegal time in]
Portland” was “not enough[, ]” and his
citation to same three cases, including Nationwide,
did “not provide what [was] missing” when those
cases concerned paralegal rates in copyright, trademark, and
patent infringement cases). See also, e.g., Haskell v.
Soc. Sec. Admin. Comm'r, No. 1:11-cv-289-GZS, 2012
WL 1463300, at *2 & n.1 (D. Me. Apr. 24, 2012) (rec.
dec., aff'd May 15, 2012) (noting that parties
had reached agreement on $75 hourly rate for paralegal fees,
but observing in footnote that plaintiff's counsel's
had replicated the same showing in support of a $100 hourly
paralegal fee that had been rejected in Pearson).
Perez, and Pearson are controlling here.
reply brief, the plaintiff protests that “it would be
facially unreasonable for the Court not to allow an increase
in paralegal rates since 2011 in the Social Security realm[,
]” arguing that (i) simply multiplying the $90 rate by
increases in the Consumer Price Index since then would yield
an increase to $100.65, (ii) this court has more recently
recognized hourly paralegal rates of between $105 and $112
for specialized paralegal work, and (iii) the paralegal who
performed the bulk of the work at issue is highly trained and
specialized, having been an attorney and developed expertise
in disability law. Plaintiff's Response to the
Defendant's Opposition to the EAJA Application for Fees
and Expenses (ECF No. 22) at 1-3.
too little, too late. Even had the plaintiff offered
additional evidence, a reply brief is not a vehicle to
rectify deficiencies in an initial showing in support of a
bid for attorney fees. See, e.g., In re One
Bancorp Sec. Litig.,134 F.R.D. 4, 10 n. 5 (D. Me. 1991)
(court generally will not address an argument advanced for
the first time in a reply memorandum). In any event, the
additional cases to which the plaintiff points are not Social
Security appeal cases, and her arguments do not otherwise
serve to remedy the deficiencies in her attempted showing
that $110 per hour represents the prevailing market rate for
the paralegal work performed in this case. As Judge Hornby
observed in Pearson in 2012: “Perhaps it is
time for an adjustment [in the paralegal hourly rate accepted
by this court for Social Security cases], but this case does