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Glenwood W. v. Social Security Administration Commissioner

United States District Court, D. Maine

June 26, 2018

GLENWOOD W., Plaintiff,
v.
SOCIAL SECURITY ADMINISTRATION COMMISSIONER, Defendant.

          ORDER GRANTING APPLICATION FOR ATTORNEY'S FEES

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

         The Court addresses various objections by the Acting Commissioner of the Social Security Administration to an attorney's fee application under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412. The Court accepts the objection to the paralegal rate because the Plaintiff has not carried his burden of proving the reasonableness of the rate for which he applied. The Court rejects the Commissioner's general contention that legal work prior to the filing of a complaint is noncompensable under the statute; however, the Court sustains the Commissioner's objection to three pre-litigation entries because the Plaintiff did not address the Commissioner's objection and did not adequately explain the entries. The Court rejects the Commissioner's repetitive objection to lawyers billing at an attorney's rate for work a paralegal could have performed. The Court grants the application in the amount of $ 4, 366.41.

         I. BACKGROUND and THE PARTIES' POSITIONS

         On April 30, 2018, Mr. W. filed a motion for attorney's fees, requesting an award under the EAJA of $4, 668.01 based on an itemized bill. EAJA Appl. for Fees and Expenses (ECF No. 25) (EAJA Appl.). The bill charged 22.70 hours of attorney time at $198.15 per hour and 1.70 hours of paralegal time at $100 per hour for a total of $4, 668.01. Id. Attach. 1, Ex. A. On May 15, 2018, the Commissioner filed her opposition to the fee application. Def.'s Opp'n to Pl.'s EAJA Appl. for Fees and Expenses (ECF No. 26) (Def.'s Opp'n). On May 29, 2018, Mr. W. replied. Reply Mem. re EAJA Fee Appl. (ECF No. 27) (Pl.'s Reply).

         A. The Commissioner's Position

         The Commissioner objects to EAJA application on fours grounds: (1) that it seeks an unreasonable paralegal rate; (2) that it seeks compensation for consultative tasks undertaken prior to the filing of the action; (3) that it includes one erroneous time entry; and (4) that Mr. W.'s counsel seeks reimbursement at a lawyer's rate for work that nonlawyers could have performed. Def.'s Opp'n at 1, 4-5. She argues for an award of attorney's fees in the amount of no more than $4, 213.19. Id. at 7-8.

         The Commissioner urges the Court to reduce the paralegal rate from $100 to $90 per hour to reflect a reasonable paralegal rate. Id. at 2-4. The Commissioner cites caselaw indicating that $90 per hour is a reasonable rate, and she critiques the lack of countervailing authority in the record to support Mr. W.'s preferred rate. Id. She also argues that, in his application, Mr. W. “make[s] no effort to support his conclusory assertion” that his preferred rate is reasonable and that thus he fails to carry his burden of establishing such reasonableness. Id. at 2, 4 (citing Manniello v. Berryhill, No. 1:17-cv-00051-GZS, 2018 WL 881757, at *2 (D. Me. Feb. 14, 2018) (collecting cases), aff'd, 2018 WL 1123861 (D. Me. Mar. 1, 2018)). The Commissioner also anticipatorily rejects any effort by Mr. W. to bolster his argument in reply, contending that the EAJA application is the only proper vehicle for such representations. Def.'s Opp'n at 4.

         The Commissioner argues that consultative tasks undertaken prior to the filing of a federal civil action are not compensable under the EAJA. Id. at 4-5. She claims that the following itemized entries have these characteristics and, thus, should be excluded:

(1) 0.9 Attorney Hours on 07/24/17 (Review denial. Review of file. Letter to client.)
(2) 0.3 Paralegal Hours on 07/25/17 (Telephone call with client re: forms.)
(3) 0.1 Attorney Hours on 07/31/17 (Receipt and review of signed forms from client.)

Def.'s Opp'n at 5.

         She also urges the Court to reduce 1.1 hours of attorney time to the paralegal rate, because in her view, Attorney Jackson was including as attorney time what were “ministerial or clerical tasks” or “non-core legal work.” Id. at 5-6. Relying on Sinclair v. Berryhill, 284 F.Supp.3d 111, 116-17 (D. Mass. 2018) and Kimball v. Shalala, 826 F.Supp. 573, 576 (D. Me. 1993), the Commissioner objects to the following itemized entries:

(1) 0.1 Hours on 09/12/17 (Receipt and review of email re: order granting in forma pauperis.)
(2) 0.1 Hours on 09/18/17 (Prepare letter regarding service of summons and receipt and review of order.)
(3) 0.1 Hours on 10/13/17 (Receipt and review of electronic order.)
(4) 0.1 Hours on 10/13/17 (Prepare affidavit of service for ...

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