Kasper v. Social Security Administration Commissioner

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
MINNIE L. KASPER 	PLAINTIFF
v. 	Civil No. 2:24-cv-02044-TLB-MEF
CAROLYN W. COLVIN, Acting,
Commissioner, Social Security Administration 	DEFENDANT
MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Pending now before this Court is Plaintiff’s Motion for Attorney Fees Under the Equal
Access to Justice Act. (ECF Nos. 18, 19). The matter is before the undersigned for report and
recommendation.
I. 	Background
On December 5, 2024, Plaintiff filed a motion for attorney’s fees and costs under 28 U.S.C.
§ 2412, the Equal Access to Justice Act (hereinafter “EAJA”), requesting $7,570.50, representing
a total of 30.90 attorney hours for work performed in 2024 at an hourly rate of $245.00. (ECF No.
17-1). On December 23, 2024, the Commissioner filed a response objecting to some of the hours
requested. (ECF No. 22).
II. 	Discussion
It is the opinion of the undersigned that the Plaintiff is entitled to a fee award in this case,
as she is the prevailing party, the government’s decision to deny benefits was not “substantially
justified,” the hourly rate requested for the attorney hours does not exceed the CPI for either year
in question, and the time asserted to have been spent in the representation of the Plaintiff before
the district court is reasonable with a reduction in hours as indicated below. See Jackson v. Bowen,
807 F.2d 127, 128 (8th Cir. 1986) (burden is on the Commissioner to show substantial justification
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for the government’s denial of benefits); Johnson v. Sullivan, 919 F.2d 503, 505 (8th Cir. 1990)
(the hourly rate may be increased when there is “uncontested proof of an increase in the cost of
living sufficient to justify hourly attorney’s fees of more than $75.00 an hour); and, Hensley v.
Eckerhart, 461 U.S. 424, 430 (1983) (in determining reasonableness, court looks at time and labor
required; the difficulty of questions involved; the skill required to handle the problems presented;
the attorney’s experience, ability, and reputation; the benefits resulting to the client from the
services; the customary fee for similar services; the contingency or certainty of compensation; the
results obtained; and, the amount involved).
The Commissioner argues that Plaintiff is not entitled to the 2.90 attorney hours she has
requested for work performed prior to filing the Complaint. We disagree. An attorney is expected
to be familiar with her case prior to filing a complaint in federal court. At the very least, this will
require her to review notes from the administrative proceedings, communicate with her client
regarding the appellate process, determine whether her client is a candidate for in forma pauperis,
and prepare the complaint for filing with the court. However, the undersigned finds that said tasks
should take no more than 2.00 hours. Accordingly, we recommend deducting .90 attorney hours
for these tasks.
Additionally, citing cases from the Eastern District of Arkansas, the Commissioner asks
this Court to reduce the hours awarded for the preparation of Plaintiff’s Appeal Brief from 21.50
to 15.00. 	See Bane v. Kijakazi, No. 4:22-CV-00464 PSH, 2023 WL 3306764, at *1 (E.D. Ark.
May 8, 2023) (citing McCarty v. Astrue, No. 4:11-cv-00022, 2012 WL 2571229, at *3 (E.D. Ark.
July 2, 2012)) (“There is precedent in this District for a finding that 15-20 hours is a reasonable
amount of time for preparing a typical appeal brief.”). While the undersigned agrees that 15 to 20
hours is the typical time claimed in cases with an average length transcript that do not involve
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particularly complex or novel issues, the reasonableness of a Plaintiff’s request is determined on a
case-by-case basis. 	See Turner v. Colvin, 2016 WL 4523588, *2 (W.D. Ark. August 29, 2016)
(holding usual time claimed in cases involving issues that are not particularly complex or novel is
15 to twenty hours in preparation of appeal brief). In the present case, the administrative transcript
is over 1,500 pages in length, rendering it above average. (ECF No. 8). Plaintiff’s counsel did,
however, represent her at the administrative level and the case did not involve novel or complicated
issues. (ECF No. 8, p. 46). As such, the undersigned recommends awarding 17.00 attorney hours
for the preparation of the Plaintiff’s brief.
Further, the Commissioner’s objection to the time spent completing the medical abstract
and abstracts of the decision and hearing should be overruled, as this time is intertwined in
counsel’s request for 21.50 hours to prepare the appeal brief. 	The undersigned believes that
reducing the total briefing time to 17.00 is sufficient.
Lastly, the Commissioner objects to the 2.00 attorney hours requested for preparation of
the EAJA petition, suggesting a reduction of .50 hours. This Court has, however, consistently held
that an award of 2.00 attorney hours for this task is reasonable. Therefore, the Commissioner’s
objection should be overruled.
Accordingly, the undersigned recommends that Plaintiff be awarded attorney’s fees under
EAJA in the amount of $6,247.50 ((30.90-5.40) x $245.00).
Pursuant to Astrue v. Ratliff, 560 U.S. 586, 596 (2010), the EAJA fee award should be
made payable to Plaintiff; however, if the Plaintiff has executed a valid assignment to Plaintiff’s
attorney of all rights in a fee award and Plaintiff owes no outstanding debt to the federal
government, the attorney’s fee may be awarded directly to Plaintiff’s attorney.
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The parties are reminded that, to prevent double recovery by Plaintiff’s counsel, this EAJA
fee award will be considered at such time as a reasonable fee is determined pursuant to 42 U.S.C.
§ 406.
III. 	Conclusion
Accordingly, the undersigned recommends that the Plaintiff be awarded the sum of
$6,247.50 for attorney’s fees pursuant to the EAJA, 28 U.S.C. § 2412.
The parties have fourteen (14) days from receipt of our report and recommendation
in which to file written objections pursuant to 28 U.S.C. § 636(b)(1). The failure to file timely
objections may result in waiver of the right to appeal questions of fact. We remind the parties
that objections must be both timely and specific to trigger de novo review by the district
court.
Dated this 15th day of January 2025.
/s/ Mark E. Ford
HONORABLE MARK E. FORD
CHIEF UNITED STATES MAGISTRATE JUDGE
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