Opinion
Case No. 2:04-CV-00224 PGC.
March 7, 2005
Plaintiff Floyd Robinson has filed an application for attorney fees under the Equal Access to Justice Act (EAJA). The motion presents two issues: first, whether an attorney who is not admitted to any state bar, but who is working under an attorney admitted to practice law in Utah, may recover for legal services at the usual rate of an attorney, or if the rate should be reduced to the usual rate for a paralegal. And second, whether the complexity of Social Security litigation and the experience of Mr. Robinson's attorneys justifies an award of enhanced fees. The government raised no objection to Mr. Robinson's bill of costs. The court concludes that an attorney not licensed in this state can nonetheless qualify for EAJA compensation at the rate of an attorney, but that no enhanced fee award is appropriate here. Mr. Robinson's application is GRANTED IN PART and DENIED IN PART.
28 U.S.C. § 2412(d) (2005).
BACKGROUND
Robinson filed a claim for disability benefits under the Social Security Act alleging that he was disabled as a result of his physical and mental problems. His application was denied throughout the administrative appeals process, and Mr. Robinson brought this action to appeal the final administrative decision. On November 12, 2004, the court remanded the claim to the Commissioner for further proceedings under 42 U.S.C. § 405(g). After final judgment is entered, the prevailing party may apply for attorney fees under the EAJA. The Supreme Court has held that an order to remand to the Social Security Administration is the district court's final judgment. Therefore, there is no question that Mr. Robinson is the prevailing party in this case. While the parties do not dispute that the government is responsible for Robinson's legal fees under the Act, the appropriate hourly rate for determining compensation is contested.
Shalala v. Shaefer, 509 U.S. 292, 293 (1993).
Id. at 299.
John Borsos, Mr. Robinson's counsel, was assisted in this litigation by Teresa Pfender. Ms. Pfender obtained a J.D. from the University of New Mexico and subsequently worked for a New Mexico law firm for 11 years. Recently, Ms. Pfender has been on inactive status with the New Mexico State Bar. She left New Mexico in 1996 to join her military husband in Germany. Since 2002, Ms. Pfender has been working with Salt Lake City attorney John Borsos and has prepared briefs for 24 Social Security cases in Mr. Borsos' office.
The government argues that Ms. Pfender is not entitled to compensation as an attorney because she is not an active attorney with any state bar, and therefore should be compensated as a paralegal. Mr. Robinson contends that Ms. Pfender is effectively an attorney and should be compensated as such. In addition, Mr. Robinson argues that the complex nature of this Social Security litigation and the expertise of Mr. Bosros and Ms. Pfender justify an award of enhanced fees of $200 per hour.
DISCUSSION
The court agrees that Ms. Pfender should be compensated as an attorney and not as a paralegal. The court does not find, however, that the nature of this case justifies an award of enhanced fees.
The EAJA added two new provisions to 28 U.S.C. § 2412 expressly authorizing attorney's fees awards against the federal government. First, § 2412(b) made the United States liable for attorney's fees and expenses "to the same extent that any other party would be liable under the common law or under the terms of any statute which specifically provides for such an award." Second, § 2412(d) rendered the government liable for a prevailing private party's attorney's fees and expenses in cases in which suit would lie only against the United States or an agency of the United States. Fees are not to exceed $125 per hour unless the court finds that an increase in the cost of living or special circumstances such as the limited availability of qualified attorneys for the proceedings justifies an increase. In this case both parties used the same formula for adjusting the hourly rate for inflation by dividing the Consumer Price Index for the month in which the work was performed by the Consumer Price Index for March 1996, the month of the re-enactment of the EAJA. This result is then multiplied by the base hourly rate of $125. In the case at hand, the hourly rate adjusted for inflation is $154.25.
28 U.S.C. § 2412(d)(2)(A)(i) (2005).
Defendant's Response to Plaintiff's Application for Attorney Fees at 2 n. 2.
Ms. Pfender is an attorney and should be compensated at the hourly rate allowed for attorneys. Attorneys not admitted to the local state bar may share in attorneys fees as long as services performed do not constitute the practice of law. A rule prohibiting the award of fees for the services of "foreign" or "inactive" legal counsel who assist local counsel would undermine the policy of the EAJA to "ensure that certain individuals, partnerships, corporations . . . or other organizations will not be deterred from seeking review of, or defending against, unjustified governmental action because of the expense involved." Ms. Pfender obtained a law degree and has many years of experience working as an attorney. Accordingly, the government should compensate Mr. Robinson's counsel at $125 per hour, adjusted for inflation.
Dietrich Corp. v. King Resources Co., 596 F.2d 422, 426 (10th Cir. 1979).
H.R. Rep. No. 99-120, p. 4.
As to Mr. Robinson's request for enhanced fees, there are no special factors other than the increase in cost of living that justify a higher fee. The Supreme Court explained that the "limited availability of qualified attorneys for the proceedings involved" refers to attorneys that have "some distinctive knowledge or specialized skill needful for the litigation in question — as opposed to an extraordinary level of the general lawyerly knowledge and ability useful in all litigation." The Court listed two examples: patent attorneys and attorneys with knowledge of a foreign language.
Pierce v. Underwood, 487, U.S. 552, 572 (1988).
Id.
Although the 10th Circuit did acknowledge the appropriateness of enhanced fees for certain circumstances in Hartter v. Apfel, the court denied all fees under the EAJA in that case and awarded fees under the Social Security Act. While the Borsos firm may have a great deal of collective experience in the complexities of Social Security law, Ms. Pfander has only been with the firm since 2002 and has worked on just 24 Social Security cases. Additionally, a Social Security appeal does not likely meet the standard explained by the Supreme Court, which requires some distinctive knowledge or special skill rather than general litigation expertise. Therefore, enhanced attorneys fees are not justified.
Hartter v. Apfel, 36 F. Supp. 2d 1303, 1307 (D. Kan. 1999), aff'd, 202 F.3d 282 (10th Cir. 2000).
CONCLUSION
Attorneys are paid for their education, training and experience. Because Ms. Pfender has a law degree, years of legal experience, and is a member of the New Mexico State Bar (although inactive), it is appropriate that she and Mr. Borsos collect attorney fees rather than paralegal fees. Ms. Pfender's expertise in the area of Social Security, however, does not rise to a special circumstance warranting enhanced fees as requested; that request is therefore denied. For the foregoing reasons, Mr. Robinson's application for attorney fees under the EAJA is GRANTED IN PART and DENIED IN PART. Attorneys fees are awarded to Mr. Robinson at the rate of $154.25 per hour for 35.35 hours, a total of $5452.74. Mr. Robinson's bill of costs is also GRANTED in the amount $150.00 to be paid by the Social Security Administration. In light of this order, defendant's motion to strike is DENIED as moot.