UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

JULIA A. DURDA, §

§

Plaintiff, §

§

v. § NO. 3:04-CV-2177-B

§

JO ANNE B. BARNHART, §

Commissioner of Social Security §

§

Defendant. §

REPORT AND RECOMMENDATION 

OF THE UNITED STATES MAGISTRATE JUDGE

Pursuant to the District Court’s order of reference filed on October 11, 2006, came on to

be heard Plaintiff’s Motion for Attorney’s Fees and Court Costs Under the Equal Access to

Justice Act and having considered the relevant pleadings the court finds and recommends as

follows:

Plaintiff filed an initial application for disability insurance benefits on August 27, 2001,

alleging disability since August 8, 1996, due to lupus, fibromyalgia, celiac disease, chronic

colitis, depression, sleeplessness, tiredness, muscle tension, irritability, spasms around her heart,

sensitivity to heat and cold, acid reflux and memory problems. (Administrative Record 57-59,

87 [Hereinafter Tr.].) Plaintiff’s application was denied at the administrative level and dismissal

was recommended by the undersigned on April 24, 2006. However, on June 21, 2006, the

District Court reversed the Commissioner’s decision and remanded the action to the

Commissioner for rehearing. Subsequent to the judgment of the District Court, Plaintiff filed her

motion for attorney’s fees pursuant to the Equal Access to Justice Act (“EAJA”), 28 U.S.C. §

2412(d). As an agency of the federal government, the Act is applicable to the decisions of the

 

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 Defendant does not challenge the hourly rate used by Plaintiff’s counsel to compute her

requested fee award.

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Social Security Administration.

Under the EAJA, a party who prevails against the United States in a federal cause of

action is entitled to payment of attorney’s fees “absent a showing by the Government that its

position in the underlying litigation ‘was substantially justified,’” Scarborough v. Principi, 541

U.S. 401, 408, 124 S. Ct. 1856, 1862 (2004), or that there are special circumstances that would

make such an award unjust, Sims v. Apfel, 238 F.3d 597, 599-600 (5th Cir. 2001). In her

response to Plaintiff’s motion for attorney’s fees, the Commissioner does not argue that her

position was substantially justified at all levels of the litigation or that an award of fees would

otherwise be unjust. Accordingly, the court finds that Plaintiff is entitled to attorney’s fees under

the EAJA.

The remaining dispute pertains to the amount of hours expended by Plaintiff’s counsel

preparing for and litigating Plaintiff’s Social Security disability claim. As the party moving for

attorney’s fees, Plaintiff has the burden to demonstrate that the requested hours are reasonable. 

See Sanders v. Barnhart, No. 04-10600, 2005 WL 2285403, at *1 (5th Cir. Sept. 19, 2005)

(citing Von Clark v. Butler, 916 F.2d 255, 259 (5th Cir. 1990)). Thereafter the court, in its

discretion, calculates an appropriate attorney’s fee award by “multiplying the number of hours

reasonably expended on the litigation by a reasonable hourly rate.”1

 Sandoval v. Apfel, 86 F. 

Supp. 2d 601, 615 (N.D. Tex. 2000). This “lodestar” amount may then be adjusted upward or

downward based on the factors enumerated in Johnson v. Georgia Highway Express, Inc., 488

F.2d 714, 717-19 (5th Cir.1974). See Sandoval, 86 F. Supp. 2d at 615, 616 n.24. 

 

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Plaintiff’s counsel’s time records reflect an expenditure of 33.3 hours between June 20,

2005, and October 20, 2005, devoted to review, research, and drafting Plaintiff’s opening brief

and her reply to Defendant’s brief and an additional 4 hours spent performing various

administrative tasks. Counsel’s time records reflect an additional 13.2 hours between April 24

and May 18, 2006, devoted to conducting legal research and drafting Plaintiff’s objections to the

Magistrate Judge’s recommendation. Plaintiff also seeks fees based on 2 hours spent preparing

the EAJA motion, 1.2 hours of administrative tasks related to the District Court’s order of

remand and an additional 5.10 hours spent litigating the instant motion and drafting the reply

brief.

Defendant does not question the veracity of the time expended by Plaintiff’s attorney, but

nevertheless argues that the number of hours submitted is excessive in light of the nature of the

case and the services rendered by Plaintiff’s counsel. Defendant therefore requests that the

compensable time be reduced to 40 hours–the “typical” number of hours spent on a Social

Security disability claim. See Def.’s Response at 3; see also Hardy v. Callahan, No.

9:96-CV-257, 1997 WL 470355, at *9 & n. 10 (E.D. Tex. Aug. 11, 1997) (“The typical EAJA

application in social security cases claims between thirty and forty hours”) (collecting cases);

Nave v. Barnhart, No. 03-2076-JWL, 2003 WL 22300178, at *2 (D. Kan. Oct. 7, 2003)

(collecting cases); Greenidge v. Barnhart, No. 6:04-CV-0379, 2005 WL 357318, at *4 n.16

(N.D.N.Y. Feb. 11, 2005) (collecting cases).

The court agrees with Defendant that Plaintiff has not shown that the legal issue she

raised in seeking judicial relief from the Commissioner’s denial of her application was either

novel or complex. In the instant case, Plaintiff’s counsel expended 33.3 hours preparing her

 

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 Although Plaintiff in her reply filed on October 25, 2006, identifies one of the Johnson

factors in support of the fee sought, the undersigned with not separately address this factor

because it does not warrant a change in the fee award. See Sanders, 2005 WL 2285403, at *2

(application of the twelve Johnson factors is not mandatory).

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opening brief and reply brief–both of which address the factual nuances of the case, rather than

merely recite boilerplate legal arguments, and an additional 4 hours on administrative tasks. 

This time expenditure is wholly within the 30-40 hours spent on a “typical” Social Security

disability case that is resolved after the filing of opening and responsive briefs. 

However, in addition to preparing her opening brief and reply brief, Plaintiff’s counsel

also drafted and filed objections to the undersigned’s report and recommendation–an atypical

time expenditure. While it was appropriate for Plaintiff’s counsel to expend time researching

and drafting her objections, the court finds that a reasonable amount of time for these efforts is 8

hours, as a sizeable portion of the objections restates arguments and citations to case law from

Plaintiff’s opening brief. Likewise, the court awards 4.5 total hours, rather than the requested

8.3, for preparation of Plaintiff’s motion for attorney’s fees and reply due to the boilerplate

nature of the motion for attorney’s fees and the minimal amount of legal research that was

required in order to file the reply brief. Therefore the total number of hours awarded is 49.8.

In computing the dollar amount of recoverable attorney’s fees the Magistrate Judge

utilizes the formula adopted by the court in Sandoval. 86 F. Supp. 2d at 614; Pl’s Br. at 4. 

Applying this standard to the reasonable hours expended, Plaintiff is entitled to recover $375.27

for attorney’s services rendered in 2004, $5,399.56 for services rendered in 2005, and $2007.63

for services rendered in 2006. The total reasonable fee for Plaintiff’s attorney’s services is

$7782.46, the “lodestar.”2

 

 

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Finally, Plaintiff seeks to recover incurred costs and expenses in the amount of $229.52,

which is not controverted.

RECOMMENDATION:

For the foregoing reasons, it is recommended that Plaintiff’s EAJA motion be granted

and that she recover from the Commissioner the sum of $8011.98 for her attorney’s fees and

expenses.

SIGNED this 30th day of November, 2006.

___________________________________

UNITED STATES MAGISTRATE JUDGE 

NOTICE

In the event that you wish to object to this recommendation, you are hereby notified that you

must file your written objections within ten (10) days after being served with a copy of this

recommendation. Pursuant to Douglass v. United Servs. Auto Ass’n, 79 F.3d 1415 (5th Cir.

1996)(en banc), a party=s failure to file written objections to these proposed findings of fact and

conclusions of law within such ten (10) day period may bar a de novo determination by the district

judge of any finding of fact and conclusion of law and shall bar such party, except upon grounds of

plain error, from attacking on appeal the unobjected to proposed findings of fact and conclusions

of law accepted by the district court. 

 

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