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Traci H. v. Berryhill

United States District Court, D. Maine

December 21, 2018

TRACI H., Plaintiff
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant


          John H. Rich III United States Magistrate Judge

         In this district, the Commissioner of Social Security and many plaintiffs “have been at loggerheads over the appropriate paralegal rate . . . for some time.” Defendant's Opposition to Plaintiff's EAJA [Equal Access to Justice Act] Application for Fees and Expenses (“Rosemary C. Opposition”) (ECF No. 18), Rosemary C. v. Berryhill, No. 1:17-cv-00282-GZS (D. Me.), at 1-2 n.1. To resolve the impasse, the court convened an evidentiary hearing on November 19, 2018, in this case and two others, Rosemary C. and Buck S. v. Berryhill, No. 2:17-cv-00465-JDL (D. Me.), to address whether the time has come for an upward adjustment in the hourly rate of $90 that this court has awarded in recent years in EAJA fees for paralegal work in Social Security disability appeal cases.[1] I conclude, and recommend that the court find, that it has.

         The plaintiff seeks a fee award pursuant to the EAJA, 28 U.S.C. § 2412(d), of $8, 181.57 for 27.8 hours of attorney time and 24.3 hours of paralegal time expended in connection with this Social Security benefits appeal. See EAJA Application for Fees and Expenses (“Motion”) (ECF No. 24) & [Fee Invoice], Exh. A (ECF No. 24-1) thereto, at [2]. The commissioner objects not only to the requested hourly paralegal rate of $110 but also to the allegedly excessive number of hours for which fees are sought. See Defendant's Response to Plaintiff's Motion for Attorney Fees Pursuant to the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d) (“Opposition”) (ECF No. 25) at 1-7.

         For the reasons that follow, I conclude that the plaintiff has shown that an increase to $105, rather than the $110 requested, is warranted in the hourly rate of experienced paralegals assisting in Social Security disability appeal cases in this district, but that the number of hours for which she seeks EAJA fees is excessive. Hence, I recommend that the court grant the Motion in part and award EAJA fees totaling $6, 730.52, consisting of $4, 389.02 for 22.15 hours of attorney time at $198.15 per hour and $2, 341.50 for 22.3 hours of the time of an experienced paralegal at $105 per hour.[2]

         I. Applicable Legal Standard

         The 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 for “reasonable fees and expenses of attorneys[.]” Id. § 2412(b). In turn, the “amount of [attorney] fees awarded under this subsection [2412(d)] shall be based upon prevailing market rates for the kind and quality of the services furnished, ” subject to a statutory cap of $125 per hour, “unless the court determines that an increase in the cost of living or a special factor . . . justifies a higher fee.” Id. § 2412(d)(2)(A).

         This court has adopted, as the measure of whether cost of living adjustments above the $125 cap are warranted, the Bureau of Labor Statistics (“BLS”) Consumer Price Index - All Urban Consumers, Not Seasonally Adjusted, U.S. city average, All items (“CPI-U-ALL”). Quint v. Barnhart, Civil No. 05-135-B-W, 2006 WL 1495004, at *1, 3 (D. Me. May 25, 2006) (rec. dec., aff'd June 13, 2006).

         The Supreme Court has construed the phrase “reasonable fees . . . of attorneys” to encompass paralegal fees, holding that “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).

         II. Discussion

         A. Appropriate Paralegal Hourly Rate

         1. Evidence Presented

         The plaintiff presented two witnesses, Portland, Maine, attorney Robert Edmond Mittel, Esq., the senior member of MittelAsen, LLC, and her own attorney, Francis M. Jackson, Esq., a founding partner of Jackson & MacNichol, and offered 11 exhibits, which were admitted without objection, as well as two demonstrative aids. Those exhibits consist of (i) a declaration and supplemental declaration of Attorney Mittel, see Plaintiff's Exhs. 5-6, (ii) two BLS price index measures, see Plaintiff's Exhs. 10-11, (iii) excerpts from two paralegal billing surveys, see Plaintiff's Exhs. 3-4, (iv) records from two Social Security EAJA fee cases decided in this court and a copy of a decision in a third, see Plaintiff's Exhs. 7-9, and (v) affidavits of local attorneys Andrea Bopp Stark, Esq., and John H. Montgomery, Esq., filed in this court in support of fee awards in non-Social Security cases, including awards for paralegal work, see Plaintiff's Exhs. 1-2.[3]

         The commissioner presented no witnesses and offered three exhibits, which were admitted without objection, as well as one demonstrative aid. Those exhibits are (i) an affidavit of Rami M. Vanegas, Assistant Regional Counsel for the Social Security Administration, Office of the General Counsel (“OCG”) - Region One, see Defendant's Exh. 1 and (ii) two decisions of the United States District for the District of Massachusetts in which the plaintiff's attorney's law firm requested, and was awarded, EAJA paralegal fees in Social Security cases at an hourly rate of $90, see Defendant's Exhs. 2-3.

         At the close of the hearing, I heard oral argument.

         2. Analysis

         At hearing, the parties agreed that the appropriate market for purposes of determining the prevailing market rate pursuant to Richlin is the District of Maine. The commissioner conceded, as she had in two teleconferences with counsel held in preparation for the hearing, that some upward adjustment is warranted. She proposed that it be calculated by the percentage increase in the CPI-U-ALL since the court's award of paralegal fees at a $90 rate in Knudsen v. Colvin, No. 2:14-cv-155-JHR, 2015 WL 5628784 (D. Me. July 31, 2015). By her calculations, this would result in an hourly rate of $96 to $97.[4] She argued that, to avoid this type of litigation in the future, the court should henceforth automatically adjust EAJA paralegal fee rates for work in Social Security disability appeal cases pursuant to the same index, the CPI-U-ALL.

         The plaintiff advocated for the use of either or both of two other BLS indices that she contended yield more targeted and accurate results: the Producer Price Index industry group data for Legal services, not seasonally adjusted (“PPI/Legal”), which does not break data down for regions or states, see Plaintiff's Exh. 10, and/or a CPI index measuring Other personal services in Northeast urban, all urban consumers, not seasonally adjusted (“CPI-U/Northeast Services”), see Plaintiff's Exh. 11. She argued that the increase should be calculated for the period since July 2013, when Social Security paralegal services first were performed for which this court awarded fees at a $90 per hour rate. See Plaintiff's Exh. 7 ([Fee Invoice] (“Baker Invoice”), Exh. A to EAJA Application for Fees and Expenses, Baker v. Colvin, No. 1:13-cv-00134-DBH (D. Me.)).[5]By the plaintiff's calculations, application of the PPI/Legal yields an hourly rate of $103.55, and application of the CPI-U/Northeast Services yields an hourly rate of $102.60. See Plaintiff's Exh. 12 (Plaintiff's Demonstrative Aid A - Change in the CPI).

         Finally, the plaintiff contended that these indices should be used only to establish a “floor” for market-rate paralegal fees. She asserted that she had demonstrated that the market rate for experienced, specialized paralegals in this district is at least $110 an hour, as a result of which her request for an EAJA paralegal fee award at that hourly rate for the services of an experienced paralegal should be approved.

         With the benefit of the evidentiary hearing and oral argument held on November 19, 2018, I recommend that the court find that the market rate for experienced paralegals assisting in Social Security disability appeal cases in this district has risen to $105 per hour, as evidenced primarily by certain testimony of Attorney Mittel and the application of the PPI/Legal index.

         a. Testimony of ...

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