United States District Court, W.D. Oklahoma
JACOB S. HALENCAK Plaintiff,
NANCY BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.
MEMORANDUM OPINION AND ORDER
ERWIN, UNITED STATES MAGISTRATE JUDGE.
the Court is Plaintiff's Motion for Award of
Attorney's Fees Under the Equal Access to Justice Act
(EAJA). (ECF No. 24). Specifically,
Plaintiff seeks an award of fees in the amount of $7, 683.00.
(ECF No. 24). Defendant objects to the amount of fee
requested, arguing that it is unreasonable. (ECF No. 25). The
Court GRANTS Plaintiff's Motion for fees
in the amount of $7, 683.00.
ATTORNEY FEES AUTHORIZED UNDER EAJA-ENTITLEMENT AND
entitles a prevailing party to recover reasonable attorney
fees from the government “‘unless the court finds
that the position of the United States was substantially
justified or that special circumstances make an award
unjust.'” Al- Maleki v. Holder,
558 F.3d 1200, 1204 (10th Cir. 2009) (quoting 28 U.S.C.
§ 2412(d)(1)(A)). When evaluating a claim for attorney fees
under EAJA, the court must first determine the number of
hours reasonably spent by counsel for the prevailing party.
Malloy v. Monahan, 73 F.3d 1012, 1017 (10th Cir.
1996). Factors considered in a reasonableness determination
include: (1) the hours that would be properly billed to
one's client in accordance with good “billing
judgment, ” (2) time spent on specific tasks, and (3)
duplication of efforts. Malloy, 73 F.3d at 1017-18.
In exercising good billing judgment, “counsel for the
prevailing party should make a good faith effort to exclude
from a fee request hours that are excessive, redundant, or
otherwise unnecessary.” Hensley v. Eckerhart,
461 U.S. 424, 434 (1983). The district court is obligated to
exclude “hours not ‘reasonably expended' from
the calculation.” Malloy, 73 F.3d at 1018.
“The party seeking the award has the burden of
persuading the court that the hours expended and the rate
sought are both reasonable.” Id.
PLAINTIFF'S EXPENDITURE OF TIME AND COMMISSIONER'S
OBJECTIONS REGARDING REASONABLENESS OF REQUESTED FEE
litigating the appeal, Plaintiff requests fees for attorney
work at the hourly rate of $197.00 for 39 hours of work
performed in 2017 and 2018. (ECF No. 24). An award under EAJA
is limited to $125.00 per hour unless the court determines
that an increase in the cost of living or another special
factor justifies a higher fee. 28 U.S.C. §2412(d)(2)(A).
Mr. Halencak has requested an upward adjustment of the
statutory rate for attorney fees and has provided supporting
documentation in the form of a letter dated February 9, 2018,
from the Office of the General Counsel of the Social Security
Administration. (ECF No. 24:10). This letter shows that for
2017 and 2018, the authorized maximum hourly rate for
attorney work in Oklahoma was $197.00. (ECF No. 24:10). Thus,
Mr. Halencak is entitled to an upward adjustment of the
hourly attorney fee consistent with the evidence provided.
has not objected to the hourly rate of $197.00. See
ECF No. 25. Therefore, based on the evidence provided and the
lack of objection from Ms. Berryhill, the Court concludes
that the hourly rate is reasonable. However, Mr. Halencak
seeks recovery for 39 hours of work and Defendant objects,
arguing that the fee request is unreasonable and reflects an
excessive number of hours billed. See ECF No. 25.
correctly notes that Plaintiff's counsel requested fees
for: (1) 28 hours of work for reviewing the record and
drafting the Opening Brief and (2) 8.8 hours of work for
reviewing the Commissioner's Response Brief and drafting
a Reply. See ECF Nos. 24:6-7 & 25:5. However,
Ms. Berryhill requests a reduction in the amount billed for:
(1) the Opening Brief to 16 hours and (2) the Reply Brief to
6 hours. (ECF No. 25:5-6). In addition to 2.2 hours of
miscellaneous work which Defendant does not dispute, Ms.
Berryhill requests a reduction in the amount of fee awarded
to $4, 767.40, to reflect 24.2 total hours of work. (ECF No.
25:6). In support of her argument, Defendant contends
Plaintiff's request is unreasonable in light of:
• The fact that counsel had been representing Plaintiff
since 2014 and was, therefore, familiar with the evidence;
• Counsel's “significant experience” in
the area of Social Security law, coupled with the fact that
this case involved only “routine issues;” and
• A 635-page record which Defendant deems
“typical” for a Social Security case.
(ECF No. 25:3-5). The Court rejects Ms. Berryhill's
‘reasonable' fee is a fee that is sufficient to
induce a capable attorney to undertake the representation of
a meritorious . . . case.” Perdue v. Kenny A. ex
rel. Winn, 559 U.S. 542, 552, (2010). Numerous courts
have noted that an average of 20 to 40 hours of attorney time
is typically expended to prosecute a social security appeal
through to judgment on the merits in federal court. See
Hayes v. Secretary of Health and Human
Services, 923 F.2d 418, 422 (6th Cir. 1990); Medina
v. Astrue, 2010 WL 1254835 at *3 (D. Colo. Mar. 26,
2010); Lavoie v. Colvin, 2016 WL 4181323 at *3 (D.
Kan. Aug. 8, 2016). Indeed, This Court has routinely
authorized EAJA fees for litigating a Social Security appeal
ranging in the amount of time requested by Mr. Halencak, who
has sought compensation for 39 hours of work. See Thomas
v. Berryhi l, No. CIV-17-212-STE (W.D.
Okla. May 9, 2018) (43.1 hours); Tomlinson v.
Colvin, Case No. CIV-15-699-STE (W.D. Okla. July 11,
2017) (39.1 hours); Buckley v. Colvin, No.
CIV-15-65-R (W.D. Okla. Jan. 13, 2017) (38.75 hours);
Medina v. Colvin, No. CIV-15-886-STE (W.D. Okla.
Nov. 4, 2016) (38.75 hours); Greenwalt v. Colvin,
No. CIV-14-1177-STE (W.D. Okla. Sept. 23, 2016) (40.2 hours);
Wiggins v. Colvin, No. CIV-14-103-R (W.D. Okla. Aug.
30, 2016) (40.8 hours).
the Court remanded the case based on the Commissioner's
selective review of the medical record. See ECF Nos.
22 & 23. Although Ms. Berryhill argues that this case
involved only “routine issues, ” she does not
further elaborate on this point, providing examples of what
types of issues she believes to be “routine.” The
Court does not find Plaintiff's request for fees as
unreasonable, considering that the case involved a thorough
examination of the medical evidence which Plaintiff believed
that the ALJ had ignored. See Myer v. Barnhart, No.
04-4077-JAR, 2005 WL 3084898, at *2 (D. Kan. Nov. 3, 2005)
(EAJA fee for 48.3 hours deemed “reasonable”
“when plaintiff was cataloguing and explaining the
evidence the ALJ overlooked, ignored or
mis-characterized.”). Furthermore, rather than merely
“routine” issues, this case presented a unique
set of ...