United States District Court, D. Maine
RECOMMENDED DECISION ON APPLICATION FOR ATTORNEY
C. NIVISON U.S. MAGISTRATE JUDGE
George Hamm seeks to recover attorney fees and expenses
pursuant to the Equal Access to Justice Act (EAJA), 28 U.S.C.
§ 2412, following a successful appeal from the denial of
his application for benefits under the Social Security Act.
Plaintiff requests an award of $6, 556.70. (EAJA Application,
ECF No. 29; Ex. A, ECF No. 29-1.) Defendant contends the
award should be reduced because the amount of attorney time
is excessive. (Defendant's Opposition, ECF No. 30.)
a review of the record and after consideration of the
parties' arguments, I recommend the Court grant the
application in the amount of $6, 457.55.
EAJA provides, in relevant part, that a prevailing party
should receive a fee-shifting award against the United
States, unless the position of the United States was
“substantially justified” or “special
circumstances make an award unjust.” 28 U.S.C. §
2412(d)(1)(A); Schock v. United States, 254 F.3d 1,
5 (1st Cir. 2001).
calculation of an EAJA fee award is ordinarily based on the
loadstar method. The court determines the number of hours
reasonably expended on the matter and multiplies that figure
by a reasonable hourly rate. This analysis allows adjustments
to be made for unreasonable and unproductive attorney time,
and for unreasonable hourly rates. A fee-shifting award under
the EAJA is also appropriately reduced to account for the
prevailing party's relative degree of success. The award
should not compensate attorney effort that was unsuccessful
in demonstrating unreasonable government action. McDonald
v. Sec'y of HHS, 884 F.2d 1468, 1478 - 79 (1st Cir.
December 6, 2017, the Court vacated Defendant's decision
on Plaintiff's application for disability insurance
benefits and supplemental security income benefits under
Titles II and XVI of the Social Security Act, and remanded
for further administrative proceedings. (Judgment, ECF No.
28.) Defendant does not dispute that an award is appropriate
in this case, nor does Defendant argue that the award should
be reduced to account for less than complete success.
Instead, Defendant contends that some of the claimed attorney
time is not recoverable or should be billed at a lower rate.
citing this Court's decisions in Pelletier v. SSA
Comm'r, No. 1:10-cv-00438-DBH, 2011 WL 5545658, at
*2, and Haskell v. SSA Comm'r, No.
1:11-cv-00289-GZS, 2012 WL 1463300, at *2, contends that
certain tasks do not require an attorney's time at the
full attorney rate. In particular, Defendant challenges 1.9
hours of attorney time billed mostly in one-tenth of an hour
increments for review of communications and notices from the
court and counsel. Within the challenge is also .9 of an hour
for the time entry: “Draft and file complaint and
summons, letter and motion for leave to proceed in forma
pauperis. Receipt and review of court email.”
argument is unconvincing. Neither Pelletier nor
Haskell established an absolute rule in this
District that an attorney's time to review notices or
orders from the court, to prepare a complaint, to prepare a
motion for leave to proceed in forma pauperis, or to review
other case-related documents was not compensable at an
attorney's rate. While the cases upon which Plaintiff
relies reinforce the Court's obligation to scrutinize the
amount of time devoted to various tasks to determine whether
some tasks should more appropriately be accomplished in less
time or by a person at a lower hourly rate, the cases do not
prohibit an attorney's recovery for the tasks identified
case, the time reflected by the challenged entries is very
limited and consistent with an attorney's obligation to
remain informed of and take appropriate action in response to
developments in a case. Regardless of whether a legal
assistant could have reviewed the same information, counsel
is obligated to keep apprised of developments and assess
whether counsel should take any action in response to each
development. Even if a legal assistant first reviewed the
communication or notice, at some point counsel must be
apprised of and assess the import of the communication or
notice. An attorney is entitled to be compensated at the
attorney rate for that review and assessment time. The
minimal time entries reflected in counsel's application
in this case are reasonable and compensable at the attorney
rate. The time devoted to the preparation of the complaint
and related filings is similarly reasonable.
also objects to the requested award of fees for travel time.
On September 6, 2017, counsel traveled to Bangor for oral
argument in four cases. In the fee application, the billing
entry is for 2 hours of attorney time for: “Travel to
and from Bangor, participate in oral argument, notes to file.
(Travel prorated). Receipt and review of minute entry.”
Defendant proposes that one hour be awarded at the attorney
rate for oral argument and one hour at the paralegal rate for
travel. While “[t]ravel is often a necessary incident
of litigation” and “may be reimbursed in a fee
award, ” travel time “ordinarily is calculated at
an hourly rate lower than that which applies to the
attorney's substantive labors.” Hutchinson v.
Patrick, 636 F.3d 1, 29 (1st Cir. 2011). This
Court's practice is to allow recovery of fees for travel
at one-half the applicable attorney rate, regardless of the
type of case. IMS Health Corp. v. Schneider, 901
F.Supp.2d 172, 193 (D. Me. 2012); Cushing v. McKee,
853 F.Supp.2d 163, 174 n.9 (D. Me. 2012); Desena v.
LePage, 847 F.Supp.2d 207, 212-13 (D. Me. 2012). Under
the applicable standard, as Defendant argues, one hour should
be compensated at the hourly rate of $99 rather than the
claimed amount of $198.15.
Defendant argues 3 hours of attorney time on August 29, 2017,
is duplicative of 2.75 hours of paralegal time on May 23,
2017. (Opposition at 6.) The entries are specific to legal
research and the research was relevant to a significant issue
raised in Plaintiff's appeal. Plaintiff asserts that the
effort was not duplicative, but expansive, i.e., counsel
expended further effort by researching a legal matter ...