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Tyrrell v. Berryhill

United States District Court, D. Maine

June 12, 2018

LAWRENCE TYRRELL, Plaintiff,
v.
NANCY A. BERRYHILL, SOCIAL SECURITY ADMINISTRATION ACTING COMMISSIONER, Defendant.

          ORDER AFFIRMING RECOMMENDED DECISION ON APPLICATION FOR ATTORNEY'S FEES

          JOHN A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE.

         When a lawyer performs work a paralegal could perform, this does not make the lawyer a paralegal or something other than a lawyer for billing purposes. The Court addresses a repetitive objection by the Acting Commissioner of the Social Security Administration to attorney's fee applications under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412 regarding the circumstances under which an attorney may bill at a lawyer's rate. The Court disagrees with the premise of the Acting Commissioner's argument: that when a lawyer does a task a paralegal might do, the lawyer must bill at a lower rate. Having considered the amount of the attorney's bill, the tasks billed at an attorney rate, and the tasks billed at a paralegal rate, the Court concludes not only that the overall bill is reasonable, but also that, within limits, an attorney who employs paralegals should be accorded a degree of flexibility in a assigning and doing work from case to case and that a lawyer should bill legal work at a lawyer's rate. The Court affirms the recommended decision of the Magistrate Judge.

         I. BACKGROUND

         On April 3, 2018, the Magistrate Judge issued a recommended decision in which he recommended that the Court grant attorney's fees and expenses to Plaintiff in the amount of $3, 229.77. Recommended Decision on Appl. for Att'y Fees (ECF No. 27) (Recommended Decision). On April 17, 2018, the Acting Commissioner of the Social Security Administration (Commissioner) objected to that portion of the recommended decision that recommended awarding a full attorney rate for certain challenged hours. Def.'s Obj. to the Magistrate Judge's Recommended Decision on Pl.'s Appl. for Att'y Fees (ECF No. 28) (Def.'s Obj.). Mr. Tyrrell replied on May 1, 2018. Reply to Obj. to EAJA Appl. for Fees and Expenses (ECF No. 29) (Pl.'s Reply).

         A. The Plaintiff's Request and the Defendant's Response

         To provide the context, it is necessary to start with the Plaintiff's initial motion and the Defendant's initial response. On February 12, 2018, the Plaintiff filed a motion for attorney's fees, requesting an award under the EAJA of $3, 251.17 based on an itemized bill. EAJA Appl. for Fees and Expenses (ECF No. 24) (EAJA Appl.). The bill charged 15.80 hours of attorney time at $198.15 per hour and 1.10 hours of paralegal time at $110 per hour for a total of $3, 251.77. Id. Attach. 1, Ex. A.

         On March 5, 2018, the Commissioner filed her opposition to the fee application. Def.'s Opp'n to Pl.'s EAJA App. for Fees and Expenses (ECF No. 25) (Def.'s Opp'n). The Commissioner objected to the hourly rate being charged for paralegal work and the hours being billed for attorney work. Id. at 1. She urged the Court to reduce the paralegal rate from $110 to $90 per hour to reflect a reasonable paralegal rate. Id. at 2-3. She also urged the Court to reduce the attorney time from 15.80 hours to 14 hours, because in her view, Attorney Jackson was including as attorney time what should have been non-compensable or, alternatively, should have been billed at a lower rate. Id. at 3-5. Relying on Pelletier v. Social Security Administration Commissioner, No. 1:10-cv-00438-DBH, 2011 WL 5545658, at *2, 2011 U.S. Dist. LEXIS 131299 (D. Me. Nov. 10, 2011), aff'd sub nom., Pelletier v. Astrue, 2011 WL 6025868 and Haskell v. Social Security Administration Commissioner, No. 1:11-cv-00289-GZS, 2012 WL 1463300, at *2, 2012 U.S. Dist. LEXIS 58178 (D. Me. Apr. 24, 2012), aff'd 2012 WL 1715256 (D. Me. May 15, 2012), the Commissioner objected to the following itemized entries:

(1) .10 hours of attorney time for “Receipt and review of signed forms from client;”
(2) .90 hours of attorney time to “Draft and file complaint and summons, letter and motion for leave to proceed in forma pauperis. Receipt and review of order;”
(3) .10 hours of attorney time to “Prepare letter regarding service of summons;”
(4) .10 hours of attorney time for “Receipt and review of notice of appearance for Attorney Makawa;”
(5) .10 hours of attorney time for “Receipt and review of procedural order, record and answer;”
(6) .10 hours of attorney time for “Receipt and review of court email re: deadlines;”
(7) .10 hours of attorney time for “Receipt and review of email re: extension. Receipt and review of motion;”
(8) .10 hours of attorney time for “Receipt and review of court email re: deadlines;” and
(9) .10 hours of attorney time for “Receipt and review of emails re: oral argument;” and
(10) .10 hours of attorney time for “Receipt and review of Judgment and order.”

Id. at 4 (citing EAJA Appl. Attach. 1 Itemization) (Itemization). The total disputed attorney time is 1.8 hours. Id. at 4-5. The Commissioner argued that the Court should either entirely eliminate this disputed time or order payment at some unstated rate ...


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