Opinion
Docket No. 03-36-B-W
June 15, 2004
Francis Jackson, Jackson Macnichol, Portland, ME, for Plaintiff, Jeffrey N. Greene.
Eskunder Boyd, Social Security Administration Office of General Counsel, Region I, Boston, MA, James M. Moore, Office of the U.S. Attorney, District of Maine, Bangor, ME, Robert J. Triba, U.S. Attorney's Office, Boston, MA, for Defendant Social Security Administration Commissioner.
RECOMMENDED DECISION ON PLAINTIFF'S MOTION FOR ATTORNEY FEES
The plaintiff has applied for an award of attorney fees totaling $9,950 pursuant to the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412, in this action in which, with respect to her Social Security Disability ("SSD") appeal, she obtained a remand for further proceedings before the Social Security Administration. See generally EAJA Application for Fees and Expenses ("Application") (Docket No. 15).
The commissioner concedes that the plaintiff is a prevailing party entitled to an award of attorney fees but contests certain aspects of the total award sought. See generally Defendant's Partial Opposition to Plaintiff's Application for Attorney's Fees Under the Equal Access to Justice Act ("Opposition") (Docket No. 16). I address each of her points in turn:
1. That the hourly rate of $160 sought for work performed by plaintiff's counsel Francis M. Jackson is based on a flawed consumer price index ("CPI") analysis (adjusted as of 2004, subsequent to when most of the work was performed), and by the commissioner's calculations should be reduced to $156. See id. at 2-3. The plaintiff states that she disagrees but is willing to forgo extended discussion of the matter, leaving it to the court's discretion. See EAJA Reply Memorandum ("Reply") (Docket No. 19) at 4. I take this to be a concession. In any event, as the commissioner points out, see Opposition at 2-3, the lion's share of the work in question (all but 1.1 of the originally billed 72.8 hours) was performed in 2003, see Invoice dated April 8, 2004 submitted to Jeffrey N. Greene from Jackson MacNichol ("Invoice"), attached as Exh. A to Application, and accordingly should be adjusted as of then. The plaintiff does not contest the commissioner's method of calculation. See Reply at 4. Accordingly, I find an award of $156 per hour for Jackson's work on this case appropriate.
The commissioner alternatively (albeit weakly) argues that Jackson's hourly fee should be fixed at the statutory cap of $125 without any adjustment for inflation. See Opposition at 3. I decline this invitation. The plaintiff submits adequate evidence to establish that (i) prevailing market rates for services such as Jackson rendered in this case exceed $125 per hour, and (ii) CPI data justify adjustment of the statutory cap to account for inflation. See Exhs. B-C to Application.
2. That the requested hourly rate of $150 for work performed by Jackson's associate, Deanna L. White, is unreasonable given White's inexperience in Social Security cases. See Opposition at 3-4. As the plaintiff points out, see Reply at 2-4, the commissioner's position is without merit. The same issue, involving the same associate (White), was resolved unfavorably to the commissioner in Curtis v. Barnhart, 89 Soc. Sec. Rep. Serv. 649 (D. Me. 2003) (rec. dec., aff'd Sept. 11, 2003).
3. That the number of White's hours for which the plaintiff seeks compensation (45.0, voluntarily reduced from 49.7 in an exercise of "billing judgment," see Application at 2) is excessive given the straightforward nature of the two issues on which the decision turned (application of res judicata and the merits of an alternative Step 2 holding) and the fact that counsel devoted time to an argument the court ultimately found to be without merit (involving application of Social Security Ruling 83-20 ("SSR 83-20")). See Opposition at 4.
I am unpersuaded that the number of White's hours for which compensation is sought should be further reduced. While the Step 2 issue was straightforward, the res judicata issue — which the court necessarily had to decide — was not. The plaintiff's underlying statement of errors raised a novel issue (the effect on res judicata analysis of the absence of any record of a purported prior application) and appropriately took the precaution of exploring whether there were (i) constitutional concerns and (ii) a question of de facto reopening, given that the administrative law judge had proceeded to decide the case on an alternative Step 2 ground. See Plaintiff's Itemized Statement of Specific Errors (Docket No. 6) at 7-19. Further, while the court ultimately found the SSR 83-20 argument unpersuasive, the point was colorable and its inclusion reasonable.
For the foregoing reasons, I recommend that the plaintiff be awarded a total of $9,870, representing payment of $3,120 for 20.0 hours expended by Jackson (at a rate of $156 per hour) and $6,750 for 45.0 hours expended by White (at a rate of $150 per hour).