Summary
In Culler, this court found that plaintiff had not submitted "proper proof establishing a cost-of-living increase for the particular year in which most fees were earned," so denied the requested adjustment for failure to meet the burden of proof on that issue.
Summary of this case from Masenthin v. BarnhartOpinion
No. 96-4164-SAC.
December 20, 2001
MEMORANDUM AND ORDER
This social security appeal comes before the court on remand from the Tenth Circuit to calculate the appropriate attorney fee award under the Equal Access to Justice Act ("EAJA"). After this court reversed the Commissioner's denial of Social Security benefits to the plaintiff and remanded the action to the Commissioner for further proceedings, the claimant filed an EAJA application for fees which this court denied upon finding that the government's position was substantially justified. The plaintiff appealed the order denying the EAJA fee application, and the Tenth Circuit reversed finding that the Commissioner had "failed to demonstrate a reasonable basis in fact or law for the ALJ's failure to include plaintiff's mental and emotional impairments in his questions to the VE" (vocational expert). (Dk. 26, p. 10). Because the application had been denied in its entirety without the Commissioner's objections to the amount of fees decided, the Tenth Circuit remanded the case to the district court for a decision on the reasonableness of the number of hours claimed and the hourly rate requested.
The claimant seeks an award of $5,967.50 in fees based on 43.4 hours of work at an hourly fee rate of $137.50. The Commissioner objects that the 43.4 hours billed by the plaintiff's counsel was unreasonable, as this was a routine disability case that lacked any unusual or complicated issues and did not require any special expertise. In reply, the plaintiff's counsel explains he rarely spends more than 30 hours on a Social Security case but the number of issues here required the additional work. The Commissioner also objects to the requested hourly rate of $137.50, as the statutory rate of $125.00 is more than reasonable under the circumstances. The plaintiff argues this higher hourly fee rate is justified by the increase in cost of living, the contingency nature of the case, and the skill involved.
The EAJA in 28 U.S.C. § 2412(d)(2)(A) states that reasonable attorneys fees: "shall be based upon prevailing market rates for the kind and quality of the services furnished, except that . . . (ii) attorneys fees shall not be awarded in excess of $125 per hour unless 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 proceedings involved, justifies a higher fee." By its terms, this provision establishes a two-step approach for arriving at the appropriate hourly rate. First, the court must determine the prevailing market rate for similar services provided by lawyers "of reasonably comparable skill, experience, and reputation." Umscheid v. Apfel, 2 F. Supp.2d 1438, 1440 (D.Kan. 1998). The burden rests with the fee applicant to establish by evidence the prevailing market rate relevant in this case. See Blum v. Stenson, 465 U.S. 886, 895 n. 11 (1984).
The EAJA was amended in 1996 to increase the maximum statutory rate from $75 to $125 per hour. This amendment applies to civil actions, like this one, commenced on or after its effective date of March 29, 1996.
In April of 1999, the plaintiff's attorney averred that $137.50 is his hourly rate and that this rate was reasonable and within the normal range for attorneys practicing within the District of Missouri. "In this case a reasonable rate will be the rate charged in the District of Kansas by social security attorneys with the similar skill, experience, and reputation as plaintiff's attorney." Umscheid, 2 F. Supp.2d at 1440. The affidavit furnished by the plaintiff's attorney is insufficient in that it does not mention the rate charged in the District of Kansas by attorneys practicing in the area of social security law who have comparable skill, experience and reputation. From its experience with such cases and its review of similar cases decided in this district, the court finds that the prevailing market rate relevant in this case is at least $125.00 per hour. See, e.g., Ward v. Apfel, No. 98-4108-DES, 1999 WL 1289465 (D.Kan. Dec. 16, 1999) ($125.00); Pry v. Apfel, 49 F. Supp.2d 1282, 1282 (D.Kan. 1999) ($130.00); Hussey v. Apfel, No. 97-2407-JWL, 1999 WL 79657 (D.Kan. Jan. 26, 1999) ($125.00); Ross v. Apfel, No. 97-4074-DES, 1998 WL 312245 (D.Kan. May. 29, 1998) ($125.00); Keddie v. Callahan, No. 94-1561-MLB, 1998 WL 401597 (D.Kan. May 19, 1998) ($128.82); Umscheid v. Apfel, 2 F. Supp.2d at 1441 ($129.50).
"`The second step, which is needed only if the market rate is greater than $[125.00] per hour, is to determine whether the court should adjust the hourly fee upward from $[125.00] to take into account an increase in the cost of living, or a special factor." Queen Square v. Halter, 168 F. Supp.2d 1318, 1320 (S.D.Ala. 2001) (quoting Meyer v. Sullivan, 958 F.2d 1029, 1033-34 (11th Cir. 1992)). From its experience and review of cases within this district, there is some factual basis for finding that the prevailing market rate may be greater than $125.00. "District courts have been determining the cost-of-living adjustment by multiplying the basic EAJA rate by the current consumer price index for urban consumers (CPI-U), and then dividing the product by the CPI-U in the month that the cap was imposed (October 1981 for pre-amendment cases, March 1996 for post amendment cases)." Sorenson v. Mink, 239 F.3d 1140, 1148-49 (9th Cir. 2001) (citation omitted). Because the EAJA did not waive sovereign immunity from prejudgment interest, any cost-of-living adjustment must be made according to the CPI-U for the year in which the fees were earned. Id. at 1449 (and cases cited therein).
Of course, evidence of a cost-of-living increase does not mandate a proportionate increase in the hourly fee rate, for such matters are firmly vested in the district court's discretion. Headlee v. Bowen, 869 F.2d 548, 551-52 (10th Cir.), cert. denied, 493 U.S. 979 (1989). In this case, the plaintiff does not submit proper proof establishing a cost-of-living increase for the particular year in which most fees were earned. See Sandoval v. Apfel, 86 F. Supp.2d 601, 614 (N.D.Tex. 2000) (claimant must make request and supply "proper proof" to receive the cost-of-living fee enhancement). The court denies the plaintiff's request for this adjustment, because he failed to carry his burden of proof on this issue. See Sandoval, 86 F. Supp.2d at 614.
All but 2.4 hours were earned prior to August 12, 1997. Nonetheless, the plaintiff relies on the cost-of-living increase through December of 1998. The plaintiff's attached exhibits do not show the cost-of-living increase between March of 1996 and August of 1997.
As for any other special factors warranting an enhancement of the hourly rate, the skill and knowledge involved in the practice of Social Security is not "sufficiently outside the mainstream of general legal practice to be automatically entitled to enhancement under" the EAJA. Chynoweth v. Sullivan, 920 F.2d 648, 650 (10th Cir. 1990). There is nothing about this case that is particularly difficult or that would have prevented the plaintiff from finding competent counsel in the District of Kansas to represent her at $125.00 per hour. For that matter, the plaintiff's blanket reference to the contingent nature of the case is not persuasive proof of a special reason for exceeding the EAJA statutory cap. Cf. Pierce v. Underwood, 487 U.S. 552, 573 (1988) ("'[C]ontingent nature of the fee,' is also too generally applicable to be regarded as a `special' reason for exceeding the statutory cap."). The plaintiff has not shown he is entitled to an hourly rate in excess of $125.00.
The burden is with the fee applicant to document that the hours were reasonably and appropriately expended on this litigation. Sandoval, 86 F. Supp.2d at 615-16; see Hensley v. Eckerhart, 461 U.S. 424, 437 (1983). "The typical EAJA fee application in social security cases claims between thirty and forty hours." Hutchison v. Chater, No. 95-4084-SAC, 1996 WL 699695, at *3 (D.Kan. Oct. 31, 1996). Instead of difficult or novel, the issues advanced in this appeal were rather typical of Social Security appeals. There was nothing particularly complex about this case. Though substantial, the medical evidence was relatively straightforward and understandable. The plaintiff has not carried his burden of proving that this case should have required more than forty hours from an attorney like the plaintiff's counsel who is experienced in Social Security appeals.
IT IS THEREFORE ORDERED that the plaintiff is entitled to recover EAJA fees in the amount of $5,000 (40 hours times $125.00 per hour).