Friday, April 08, 2011

EAJA - atty. fees - experienced attorney; special circumstances; who gets the award

Burt v. Astrue - ED Pa. - April 6, 2011 It is well-settled that where an attorney is experienced in the social security field in general or in the particulars of the case at issue, the Commissioner is entitled to “additional efficiency.” Highsmith v. Barnhart, No. CIV.A.04-801, 2006 WL 1582337, at *6 (E.D. Pa. June 7, 2006). Therefore, where arguments on appeal of such a case are verbatim recitations of arguments previously made during administrative proceedings, attorney’s fees may be reduced. Id. By the same token, however, when an experienced social security attorney has not previously represented this client during administrative proceedings, the attorney is not as well-versed in the particulars of the case and thus may justifiably need additional time. See Forsythe v. Astrue, No. CIV.A.07-266, 2008 WL 4683436, at *5 (W.D. Pa. Oct. 22, 2008); see also Sommerville v. Astrue, 555 F. Supp. 2d 1251, 1254 (D. Kan. 2008) (declining to reduce fees on ground that “this court will not disregard time honestly spent working on the brief simply because the attorney preparing it is experienced”). While no court has, or could, establish a broad-sweeping rule as to what constitutes a reasonable amount of time for briefing a social security appeal, several cases have offered helpful standards. For example, in Walton v. Massanari, 177 F. Supp. 2d 359 (E.D. Pa. 2001), the court found – citing to a prior Third Circuit decision – that two to three hours per page was reasonable. Id. at 364-65. Similarly, in Neal v. Astrue, 741 F. Supp. 2d 729 (W.D. Pa. 2010), the court found that twenty-eight and a half hours for a twenty-six page brief on summary judgment was not unreasonable or excessive. Id. at 722-23. Finally, in Wirth v. Barnhart, 325 F. Supp. 2d 911 (E.D. Wis. 2004), the court found thirty hours spent on a main brief by experienced social security counsel to be reasonable, even where the applicable law was well-settled. Id. at 915. In the present matter, Plaintiff’s counsel submitted an almost thirty-page brief in support of the Motion for Summary Judgment. Approximately nine pages of that brief were copied verbatim from other briefs filed by counsel in other social security cases in which he was counsel of record. Nonetheless, the Court does not find that such duplication warrants any fee deduction for several reasons. First, the duplicated sections were simply cut-and-paste versions of developed and wellsettled law. Almost any efficient and experienced attorney takes advantage of previously-written statements of law or standards of review when the law has been neither superseded nor substantively altered. Indeed, the Court notes that Commissioner’s counsel is frequently guilty of the same efficiencies.

Second, the brief clearly reflects counsel’s significant effort in scouring the administrative record to provide detailed factual support on six separate legal issues, highlighting alleged deficiencies in the administrative decision. While the legal issues themselves were not necessarily complex, the identification of issues under the relevant principles and operative facts required counsel’s knowledge and experience – a point which the Commissioner does not dispute.

Third, counsel’s task was complicated by his non-involvement in the lengthy prior administrative proceedings, thereby requiring him to advocate in unfamiliar territory. Fourth, although not succeeding on all issues, counsel clearly obtained a favorable result for his client.

Finally, even subtracting the nine duplicated pages from the total, Plaintiff’s counsel provided at least twenty-one new pages of briefing, meaning that he spent just over one hour per page. Under the standards within the Third Circuit, such time is clearly not excessive or unreasonable. Accordingly, the Court declines to deduct any of these requested fees.

No Special Circumstance - There is an extensive discussion of the issue of fees when plaintiff has opposed the Commr's motion for remand. In this case, the court held that Plaintiff's counsel was justified in opposing soc. sec. motion for remand because of (a) the Commissioner’s failure to immediately recognize the defect in the second ALJ’s decision; (b) the reasonableness of Plaintiff’s argument that the law of the case required reversal; and (c) the extreme delay of more than ten years justified Plaintiff’s opposition to remand. Accordingly, the Court declines to exclude from Plaintiff’s attorneys fee award the hours spent on that effort.

Who Obtains the Award - The final argument in the Commissioner’s brief urges that the award of EAJA fees should be made payable to Plaintiff and not her counsel. The Court agrees. Section 2412(d)(1)(A) of 28 U.S.C. states that courts “shall award to a prevailing party . . . fees and other expenses . . . incurred by that party.” Id. In the recent case of Astrue v. Ratliff, the United States Supreme Court definitively held that “the term ‘prevailing party’ in fee statutes is a ‘term of art’ that refers to the prevailing litigant.” 130 S. Ct. 2521, 2525 (2010). In turn, it rejected any argument that an attorney is directly entitled to an award of fees and concluded that “the statute’s plain text . . . ‘awards’ the fees to the litigant, and thus subjects them to a federal administrative offset if the litigant has outstanding federal debts.” Id. at 2527. I In light of this controlling interpretation of the statute, the Court awards the attorneys fees directly to Plaintiff.1

1 Plaintiff cursorily remarks that she has assigned the fees to her attorney, thus making the fees directly payable to her attorney. As persuasively noted by one of our sister courts, however, “[a]n assignment made prior to the award of attorneys fees necessarily violates [the requirements of the Anti-Assignment Act, 31 U.S.C. § 3727] because the claim has not been allowed, the amount of the claim is not decided and a warrant for payment of the claim has not been issued.” Hartage v. Astrue, No. CIV.A.09-48, 2011 WL 1123457, at *5 (M.D. Ga. Feb. 15, 2011). In this case, the purported assignment by Plaintiff to her counsel was made prior to the award of attorneys fees, meaning that it contravenes the Anti-Assignment Act. Such an assignment thus does not allow Plaintiff’s counsel to directly receive the court-awarded EAJA fees.