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McGill v. Colvin

United States District Court, S.D. Mississippi, Southern Division

May 19, 2015




BEFORE THE COURT is the Petition for Approval of Attorney Fees [16] filed by Plaintiff Jeremy Keith McGill. Defendant Carolyn W. Colvin, Acting Commissioner of Social Security, has filed a Response [18], and Plaintiff has filed a Rebuttal [21]. Having considered the parties' submissions, the record, and relevant legal authorities, the Court finds that the Petition for Approval of Attorney Fees should be granted in part and denied in part.


On June 23, 2010, Plaintiff Jeremy Keith McGill ("Plaintiff") filed a claim for social security benefits with the Social Security Administration. Admin. R. 166 [6]. Following a hearing, the Administrative Law Judge denied Plaintiff's claim and the Appeals Council denied Plaintiff's request for review. Plaintiff filed the Complaint [1] in this case against Defendant Carolyn W. Colvin, Acting Commissioner of Social Security ("the Commissioner") on May 22, 2013. Admin. R. 163-76, 177-79 [6]. On January 10, 2014, this Court entered an Order [14] remanding the Final Decision to the Commissioner for further consideration. On remand, the Commissioner found in favor of Plaintiff on June 17, 2014. Notice of Decision-Fully Favorable [16-1].

Plaintiff subsequently filed the Petition for Approval of Attorney Fees [16] seeking approval of a total of $11, 941.02, consisting of costs in the amount of $1, 720.27, and attorneys' fees of $10, 220.75, based on an hourly rate of $225.00. Pet. 2 [16]. The Commissioner objects that Plaintiff has not met his burden under the Equal Access to Justice Act, 28 U.S.C. § 2412 ("EAJA"), of showing that his costs or expenses allegedly totaling $1, 720.27 are reasonable. Resp. in Opp'n 5-6 [18]. The Commissioner contends that 15.55 hours of attorneys' fees are not allowable under the EAJA because the fees are billed for work performed prior to the commencement of judicial proceedings. Id. at 8. The Commissioner also argues that Plaintiff's counsel is not entitled to fees for preparing four motions for extension of time and posits that the $225.00 hourly rate for attorneys' fees unjustifiably exceeds the EAJA's $125.00 statutory rate. Id. at 9, 12-14.


A. Legal Standard

Under the EAJA, "a party prevailing against the United States in court, including a successful Social Security benefits claimant, may be awarded fees payable by the United States if the Government's position in the litigation was not substantially justified.'" Gisbrecht v. Barnhart, 535 U.S. 789, 796 (2002) (quoting 28 U.S.C. § 2412(d)(1)(A)). "EAJA fees are determined not by a percent of the amount recovered, but by the time expended' and the attorney's [hourly] rate, '... capped in the mine run of cases at $125 per hour...." Id. (quoting 28 U.S.C. § 2412(d)(1)(B) and (d)(2)(A)). "A higher fee may be awarded if the court determines that an increase in the cost of living or a special factor, such as the limited availability of qualified attorneys for the proceeding involved, justifies a higher fee.'" Id. at n.4 (quoting 28 U.S.C. § 2412(d)(2)(A)(ii)).

The burden of establishing the reasonableness of the requested attorneys' fees is on the party seeking an award of fees. See Sanders v. Barnhart, No. 04-10600, 2005 WL 2285403, at *1 (5th Cir. Sept. 19, 2005) (noting that the "EAJA is a partial waiver of sovereign immunity [and] must be strictly construed in the government's favor[, ]" and that the fee applicant "has the burden of demonstrating the reasonableness of the number of hours expended") (citing Tex. Food Indus. Ass'n v. USDA, 81 F.3d 578, 580 (5th Cir. 1996)). The Fifth Circuit Court of Appeals has noted that "the twelve factors set out in Johnson v. Georgia Highway Express [] bear on the determination of a reasonable rate under the EAJA...." Rice v. Astrue, 609 F.3d 831, 838 n.32 (5th Cir. 2010) (citing 488 F.2d 714, 717-19 (5th Cir. 1974), abrogated on other grounds, Blanchard v. Bergeron, 489 U.S. 87, 93 (1989)).[1] If made by the Court, "cost-of-living adjustments under the EAJA must be made to reflect the appropriate rate in the year in which the services were rendered." Perales v. Casillas, 950 F.2d 1066, 1076 (5th Cir. 1992).

B. Analysis

The Commissioner does not dispute that Plaintiff is a "prevailing claimant" for purposes of the EAJA. The Commissioner also has not offered any argument suggesting that the position of the United States was substantially justified. The Commissioner only challenges the amount of the award sought by Plaintiff's counsel. Therefore, the Court must determine the extent to which Plaintiff is entitled to an award of attorneys' fees, expenses, and costs of court under the EAJA in light of the Commissioner's challenge. See 28 U.S.C. § 2412.

1. Counsel's Request for Reimbursement of Expenses

Plaintiff's counsel seeks an award of expenses in the amount of $1, 720.27.

The Commissioner "does not challenge Plaintiff's request for $350.00 to reimburse his federal court filing fee[, ]" but asserts that Plaintiff has not sufficiently explained the remainder of the costs and expenses sought. Resp. in Opp'n 5-7 [18]. With respect to the expenses paid to HealthPort totaling $891.50, the Court finds that Plaintiff has sufficiently explained those expenses as being necessary for the preparation of his case in that the sum requested represents the total fees paid for the retrieval and production of Plaintiff's medical records. Thus, the $891.50 Plaintiff requests will be reimbursed. Plaintiff offers no response to the Commissioner's challenge to the $78.77 expense described only as "FEDEX" and ...

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