Brown v. Colvin, 4:12CV3260.

16 F.Supp.3d 1051

Jack Jay BROWN, Plaintiff

v.Carolyn W. COLVIN, Acting Commissioner of the Social Security Administration, Defendant.

No. 4:12CV3260.

United States District Court, D. Nebraska.

Signed April 9, 2014.

Catherine G. Ratliff, Ratliff Law Firm, Hot Springs, SD, for Plaintiff.

MEMORANDUM AND ORDER

RICHARD G. KOPF, Senior District Judge.

Plaintiff's counsel has applied for an award of reasonable fees and expenses under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412 (filing 26).¹ She requests an attorney's fee of $10,628.42, for 59.67 hours of work (computed at an hourly rate of $178.12),² plus expenses (for service by certified mail and PACER fees) of $35.45. The Commissioner does not dispute that an award should be made to Plaintiff under the EAJA,³ but does object that the number of hours claimed by Plaintiff's counsel is excessive (filing 28). This objection is well taken.

Plaintiff's counsel is an experienced Social Security practitioner who provided excellent representation to her client, but the number of hours she devoted to this case is abnormally high. Counsel's time records indicate (in rounded numbers) that she spent 4 hours getting the case on file and obtaining service of process, 9 hours reviewing and summarizing the administrative record (of 670 pages),⁴ 7 hours researching legal, medical, and other issues, 26 hours drafting a 35–page opening brief, and 12 hours reviewing the Commissioner's brief and drafting a 13–page reply. She also spent 90 minutes preparing the EAJA fee application and supporting brief.

The Commissioner has declared in this and other cases that “[a]s a general rule of thumb, attorneys experienced in Social Security disability litigation are typically awarded compensation for 30 to 40 hours in this District” (filing 28 at 3). My own survey of decisions reported in Westlaw indicates that the “typical” range in this district may be somewhat lower.

There are 20 reported decisions awarding EAJA fees for Social Security disability cases in which the plaintiff filed at least 2 briefs on the merits.⁵ See Fickler v. Colvin, No. 8:11CV440, 2013 WL 3270579 (D.Neb. June 26, 2013) (Gerrard, J.) ($6,571.19 awarded based on 26.0 hours of attorney time and 19.8 hours of legal assistant time; no objection by Commissioner); Larson v. Colvin, No. 4:12CV3010, 2013 WL 1748426 (D.Neb. Apr. 23, 2013) (Urbom, J.) ($5,695.52 awarded based on 31.05 hours of attorney time; no objection by Commissioner); Arriaga v. Colvin, No. 8:11CV261, 2013 WL 1629203 (D.Neb. Apr. 16, 2013) (Urbom, J.) ($6,216.88 awarded based on 34.3 hours of attorney time; no objection by Commissioner); Redwine v. Astrue, No. 8:10CV286, 2012 WL 5864040 (D.Neb. Nov. 16, 2012) (Bataillon, J.) ($6,080.00 awarded based on 35.25 hours of attorney time; no objection by Commissioner); Lorsung v. Astrue, No. 4:10CV3213, 2012 WL 3905093 (D.Neb. Sep. 6, 2012) (Bataillon, J.) ($4,828.72 awarded based on 27.5 hours of attorney time; no objection by Commissioner); Thomas v. Astrue, No. 4:10CV3250, 2012 WL 3263629 (D.Neb. Aug. 9, 2012) (Zwart, M.J.) ($3,831.35 awarded based on 16.3 hours of attorney time and 34.59 hours of paralegal time; Commissioner's objections sustained in part); Easterbrook v. Astrue, No. 4:09CV3239, 2012 WL 1869564 (D.Neb. May 22, 2012) (Bataillon, J.) ($7,898.46 awarded based on 40.8 hours of attorney time, 18.5 hours of paralegal time, and 8.78 hours of law clerk time; Commissioner's objections sustained); Sahs v. Astrue, 832 F.Supp.2d 1066 (D.Neb.2011) (Kopf, J.) ($8,425.80 awarded based on 38.8 hours of attorney time, 10.55 hours of paralegal time, and 40.87 hours of law clerk time; Commissioner's objections overruled; additional $87.50 awarded based on 0.5 hours of attorney time for reply brief); Campbell v. Astrue, No. 4:09CV3237, 2011 WL 2632533 (D.Neb. July 5, 2011) (Bataillon, J.) ($6,100.37 awarded based on 34.85 hours of attorney time and 21.40 hours of paralegal and law clerk time; no objection by Commissioner); Kissel v. Astrue, No. 8:08CV513, 2009 WL 3818790 (D.Neb. Nov. 12, 2009) (Bataillon, J.) ($4,579.60 awarded based on 26.7 hours of attorney time; no objection by Commissioner); Neemann v. Astrue, No. 8:08CV286, 2009 WL 3165444 (D.Neb. Sept. 29, 2009) (Bataillon, J.) ($3,816.25 awarded based on 23.5 hours of attorney time; no objection by Commissioner); Marek v. Astrue, No. 8:08CV31, 2009 WL 2003330 (D.Neb. July 2, 2009) (Bataillon, J.) ($5,725.37 awarded based on 32.6 hours of attorney time; no objection by Commissioner); Swanberg v. Astrue, No. 8:07CV420, 2008 WL 4482824 (D.Neb. May 15, 2008) (Kopf, J.) ($2,283.75 awarded based on 13.05 hours of attorney time; no objection by Commissioner); Jezbera v. Astrue, No. 4:07CV3217, 2008 WL 4186240 (D.Neb. Sept. 8, 2008) (Kopf, J.) ($4,100.56 awarded based on 24.5 hours of attorney time; no objection by Commissioner); Manuel v. Social Sec. Admin., No. 8:07CV181, 2008 WL 2444713 (D.Neb. June 17, 2008) (Urbom, J.) ($6241.00 awarded based on 37.6 hours of attorney time; no objection by Commissioner); Davis v. Astrue, No. 4:06CV3291, 2008 WL 2437046 (D.Neb. June 10, 2008) (Bataillon, J.) ($6,400.00 awarded based on settlement with Commissioner; plaintiff had requested $6818.53 based on 36.3 hours of attorney time and 29.61 hours of paralegal time; stipulated fee equivalent to 34.2 hours of attorney time and 27.8 hours of paralegal time); Cayou v. Astrue, No. 4:07CV3153, 2008 WL 2037426 (D.Neb. May 12, 2008) ($4,695.40 awarded based on 27.62 hours of attorney time; no objection by Commissioner); Davis v. Astrue, No. 8:06CV643, 2008 WL 1924263 (D.Neb. Apr. 28, 2008) (Bataillon, J.) ($6,886.05 awarded based on 40.70 hours of attorney time; no objection by Commissioner); Smith v. Social Sec. Admin., No. 8:06CV698, 2008 WL 54180 (D.Neb. Jan. 3, 2008) (Bataillon, J.) ($4,928.87 awarded based on 30.1 hours of attorney time; no objection by Commissioner); Abbott v. Barnhart, No. 4:01 CV3066, 2002 WL 1774050 (D.Neb. Aug. 2, 2002) (Urbom, J.) ($6,284.26 awarded based on 41.35 hours of attorney time and 15.75 hours of paralegal time; additional $974.36 awarded for 6.75 hours of attorney time spent replying to Commissioner's opposition to EAJA fee application).⁶

The average (mean) number of hours of attorney time allowed in these 20 reported decisions is 30.8; the median is 31.8.⁷ The hours range from a low of 13.05 hours (Swanberg ) to a high of 41.35 hours (Abbott ).

In 6 of these 20 reported decisions, compensation was also awarded for time that was spent on the cases by paralegals (or legal assistants) and law clerks. Because the hourly rates for paralegals and law clerks are much lower than for attorneys, their time must be converted into an equivalent number of attorney-hours for purposes of this analysis.⁸ When this conversion is accomplished, and the converted hours are added to the number of hours of attorney time, then the average (mean) number of hours allowed in these 20 reported decisions increases to 32.7. The median becomes 33.5 hours, and the maximum is 47.15 hours (Sahs ).⁹

In addition, there are 21 Westlaw-reported decisions awarding EAJA fees for Social Security disability cases in this district where no reply brief was filed by the plaintiff. See Evans v. Colvin, No. 8:12CV335, 2014 WL 823428 (D.Neb. Mar. 3, 2014) (Urbom, J.) ($2,351.52 awarded based on 12.91 hours of attorney time; no objection by Commissioner); Woodmancy v. Colvin, No. 8:12CV90, 2013 WL 4104461 (D.Neb. Aug. 12, 2013) (Urbom, J.) ($5,552.85 awarded based on 24.3 hours of attorney time and 11.9 hours of legal assistant time; no objection by Commissioner); Schulte v. Colvin, No. 4:12CV3026, 2013 WL 3779141 (D.Neb. July 17, 2013) (Bataillon, J.) ($9,034.60 awarded based on 49.2 hours of attorney time; Commissioner's objections overruled except for reduction of 1.9 hours); Nunn v. Astrue, No. 4:11CV3051, 2013 WL 592000 (D.Neb. Feb. 14, 2013) (Smith Camp, J.) ($1,281.98 awarded based on 7.1 hours of attorney time; no objection by Commissioner); Tomlinson v. Astrue, No. 8:11 CV96, 2012 WL 5997007 (D.Neb. Nov. 29, 2012) (Bataillon, J.) ($5,981.25 awarded based on 33.0 hours

of attorney time; no objection by Commissioner); Snider v. Astrue, No. 7:11CV5003, 2012 WL 5864038 (D.Neb. Nov. 19, 2012) (Bataillon, J.) ($2,503.43 awarded based on 13.8 hours of attorney time; no objection by Commissioner); Walton v. Astrue, No. 8:12CV 159, 2012 WL 5186004 (D.Neb. Oct. 18, 2012) (Gerrard, J.) ($5,777.60 awarded based on 31.4 hours of attorney time; no objection by Commissioner); Morrison v. Astrue, No. 4:11CV3135, 2012 WL 1392921 (D.Neb. Apr. 18, 2012) (Smith Camp, J.) ($2,703.20 awarded based on 14.92 hours of attorney time; no objection by Commissioner); Messer v. Astrue, No. 4:10CV3171, 2012 WL 136270 (D.Neb. Jan. 18, 2012) (Urbom, J.) ($6,481.59 awarded based on 31.1 hours of attorney time, 24.92 hours of paralegal time, and 11.25 hours of law clerk time; Commissioner's objections sustained in part; additional $1,416.38 awarded for 7.8 hours of attorney time spent drafting reply brief for EAJA fee application)¹⁰ ; Smith v. Astrue, No. 4:08CV3264, 2010 WL 3909338 (D.Neb. Oct. 1, 2010) (Bataillon, J.) ($1,300.00 awarded for 10.4 hours of attorney time; no objection by Commissioner); Nichols v. Astrue, No. 4:09CV3113, 2010 WL 2545798 (D.Neb. June 21, 2010) (Bataillon, J.) ($1,075.00 awarded for 8.6 hours of attorney time; no objection by Commissioner); Torres v. Astrue, No. 8:08CV244, 2009 WL 2487887 (D.Neb. Aug. 12, 2009) (Smith Camp, J.) ($4,262.50 awarded based on 34.1 hours of attorney time; no objection by Commissioner); Hull v. Astrue, No. 4:08CV3119, 2009 WL 2489067 (D.Neb. Aug. 10, 2009) (Bataillon, J.) ($3,704.00 awarded based on 23.15 hours of attorney time; no objection by Commissioner); Broaden ex rel. Dominic v. Astrue, No. 8:07CV442, 2009 WL 1652190 (D.Neb. June 10, 2009) (Bataillon, J.) ($4,658.00 awarded based on 27.2 hours of attorney time; no objection by Commissioner); ...