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Goodson v. Commissioner of Social Security

September 28, 2009

MICHAEL GOODSON, PLAINTIFF,
v.
COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Honorable Barry Ted Moskowitz United States District Judge

ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR ATTORNEY'S FEES

Plaintiff has filed a motion for attorney's fees under the Equal Access to Justice Act. For the reasons discussed below, Plaintiff's motion is GRANTED IN PART and DENIED IN PART.

I. BACKGROUND

In this action, Plaintiff sought judicial review of the Commissioner's denial of his application for Supplemental Security Income Payments under Title XVI of the Social Security Act, 42 U.S.C. §§ 416(i) and 423. In an order dated September 26, 2008, the Court granted in part and denied in part Plaintiff's motion for summary judgment and denied Defendant's cross-motion for summary judgment. On December 8, 2008, the Clerk entered judgment in favor of Plaintiff.

On March 8, 2009, Plaintiff filed the instant motion for attorney's fees under the Equal Access to Justice Act ("EAJA").

II. DISCUSSION

The EAJA entitles a prevailing party, other than the United States, to attorney's fees unless the government's position was substantially justified or special circumstances exist that render the award of fees unjust. 28 U.S.C. § 2412(d)(1)(A). Defendant does not dispute that Plaintiff is the "prevailing party," nor does Defendant contend that the Government's position was substantially justified. Rather, Defendant only argues that Plaintiff counsel's claimed hours are excessive and unreasonable.

The award of attorney's fees under the EAJA must be reasonable. 28 U.S.C. § 2412(d)(2)(A). "The most useful starting point for determining the amount of a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate." Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). Hours that are excessive, redundant, or otherwise unnecessary should be excluded form an award of fees. Id. at 434. "Hours that are not properly billed to one's client also are not properly billed to one's adversary pursuant to statutory authority." Id. (quoting Copeland v. Marshall, 641 F.2d 880, 891 (D.C. Cir. 1980) (en banc)(emphasis in original)).

Plaintiff seeks fees based on an hourly rate of $172. Defendant does not challenge the reasonableness of this hourly rate. The Court finds that the hourly rate is reasonable and fairly takes into account the relevant cost of living adjustment.*fn1

Plaintiff's counsel billed 58.76*fn2 hours in connection with the litigation of this action and the preparation of her EAJA fee motion. Defendant does not dispute 19.91 hours that Plaintiff includes in her schedule ($3,424.52). Defendant, however, challenges other entries on Plaintiff's counsel's billing schedule because: (1) entries constituting purely clerical work not requiring attorney expertise are improper; (2) Plaintiff's attorney spent unnecessary and excessive time preparing to write her motion for summary judgment; (3) entries billing time for preparing for a reply brief never filed are improper; (4) Plaintiff's attorney spent unnecessary and excessive time reviewing the favorable decision of this Court granting in part and denying in part summary judgment; (5) entries relating to Plaintiff's unopposed motion for entry of judgment do not relate to the merits and are improper to assess against Defendant; (6) Plaintiff's attorney spent excessive time preparing her billing schedule; and (7) Plaintiff's attorney spent excessive time preparing her EAJA application.

A. Clerical Work

Defendant argues that Plaintiff is not entitled to 3.62 hours of work he defines as clerical. The act of filing with the court is secretarial and should not be compensated. However, it is proper for an attorney to ensure that papers have been properly filed -- e.g., by reviewing the docket or the notice of electronic filing. However, the Court agrees that Plaintiff's counsel billed an excessive amount of time for reviewing the notices of electronic filing (as opposed to the time spent reviewing substantive underlying documents). Although Plaintiff's attorney appears to have billed the smallest increment of time allowed by her billing system for reviewing each notice, the cumulative time billed is excessive. It takes only a few seconds to review a notice of electronic filing. Therefore, the Court will allow .25 hours total for review of the notices of electronic filing of the Complaint [Docket No. 1] (6/26/07), Plaintiff's cross-motion for summary judgment [Docket No. 15] (12/08/07), the motion for leave to proceed in forma pauperis [Docket No. 2] (6/26/07), the notice of appearance of Sarah L. Ryan [Docket No. 9] (9/06/07), the notice of appearance of Elizabeth Frier [Docket No. 18] (1/16/08), the joint motion to extend time to respond [Docket No. 19] (2/04/08), and the four summons executed by Plaintiff and filed with the Court [Docket Nos. 5, 6, 7, and 8] (7/05/07, 8/09/07, 8/10/07, 8/16/07).

Defendant also challenges as clerical the time Plaintiff's attorney spent reviewing orders of the Court. Review of court orders is reasonable. Thus, the Court will allow .08 of an hour spent reviewing each of the Court's two orders on the parties' joint motions to extend time [Docket 17, 22] (1/02/08, 2/12/08). The Court allows .08 of an hour for time spent reviewing the Court's order granting the Plaintiff's motion to proceed in forma pauperis [Docket No. 3] (7/03/07). The Court also allows .16 of an hour for the time counsel spent reviewing Docket No. 23 and inquiring with the Court about it.

The Court will allow .08 of an hour for review of each of the following items: (1) correspondence package from the Clerk of Court re: summons and service (7/15/07); (2) correspondence regarding the U.S. Marshall's notice of service (8/10/07, 8/12/07); and (3) the district court's letter regarding proceeding in forma pauperis [Docket No. ...


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