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Norma Delgado v. Michael J. Astrue

December 28, 2012

NORMA DELGADO, PLAINTIFF-CLAIMANT,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT-RESPONDENT.



The opinion of the court was delivered by: Jeffrey T. Gilbert Magistrate Judge

MEMORANDUM OPINION AND ORDER

Claimant Norma Delgado filed an action challenging the final decision of the Commissioner of the Social Security Administration ("Commissioner") denying her application for Supplemental Security Income ("SSI") on September 16, 2011. On March 7, 2012, this Court issued a Memorandum Opinion and Order remanding the Commissioner's decision for further proceedings. Delgado v. Astrue, No. 11 CV 02849, 2012 WL 769735 (N.D.Ill. Mar. 7, 2012). Claimant now seeks to recover her attorneys' fees incurred in her successful challenge to the Commissioner's decision pursuant to the Equal Access to Justice Act ("EAJA"), 28 U.S.C. §2412(a) [Dkt. # 26]. Claimant argues that Commissioner's position was not substantially justified and that there are no special circumstances to make an EAJA award unjust.

Under the EAJA, a party who prevails against the United States in a civil action is entitled to an award of reasonable attorneys' fees and costs. 28 U.S.C. § 2412(d). A court may award feeds under the EAJA when (1) the claimant is a prevailing party; (2) the government's position was not substantially justified; (3) there are no special circumstances that would make an award unjust; and (4) the prevailing party's application for fees is timely filed. 28 U.S.C. § 2412(d)(1)(A); Comm'r, INS v. Jean, 496 U.S. 154, 155, 110 S.Ct. 2316, 110 L.Ed.2d 134 (1990); Stewart v. Astrue, 561 F.3d 679, 683 (7th Cir. 2009). Here, the Commissioner does not dispute that Claimant has satisfied these prerequisites to an award of fees. The dispute here is whether the requested award is reasonable. Claimant submitted invoices showing her attorneys worked a total of 54.25 hours and she requests fees for 53.5 hours thereof. She seeks a total award of $9,157.63 after deduction for time billed but withdrawn for purposes of the requested fee award. The Commissioner objects that the hours expended are excessive and unreasonable. The Commissioner also argues that the requested hourly rates are unjustified and the statutory ceiling of $125/hour should be awarded for each hour deemed reasonable. For the reasons discussed below, Claimant's motion is granted and the Commissioner's objections are overruled.

DISCUSSION

I.Violation of Federal Rule of Civil Procedure 5.2(c)

As a preliminary matter, Claimant argues that the Commissioner's Response to her Motion should be stricken due to violations of Rule 5.2(c) of the Federal Rules of Civil Procedure. [Pl.'s Reply (Dkt.#34) at 1.] Rule 5.2(c) limits remote access to electronic files in actions for Social Security benefits. Parties and their attorneys are entitled to remote electronic access to any part of the case file, but other persons only have remote electronic access to the court's docket and opinions, orders, judgment, and other dispositions, not to any other part of the case file or administrative record. Fed.R.Civ.P. 5.2(c). The Rule provides for differential treatment of Social Security cases due to the sensitive information and detailed medical records included in Social Security filings. Crossman v. Astrue, 714 F.Supp.2d 284, 288 (D. Conn. 2009) (citing Fed.R.Civ.P. 5.2 advisory comm. nn.).

In support of its Response to Claimant's Motion for attorneys' fees, the Commissioner attached as exhibits three briefs filed in two other Social Security appeals in which Claimant's counsel in this case represented different claimants. This does indeed violate Rule 5.2(c) as it makes available to this Claimant parts of those other case files to which she is not entitled to have access. By attaching these exhibits to his Response, the Commissioner violated Rule 5.2(c). We are not inclined, however, to strike the Commissioner's Response in its entirety, as Claimant requests, as a sanction for his violation of Rule 5.2(c). The Commissioner, though, should make sure he complies with Rule 5.2(c) in the future including when responding to EAJA requests for attorneys' fees. *fn1

II. Number of Hours

The Commissioner challenges as excessive the 53.5 total hours of work performed by Claimant attorneys. The Commissioner asks that Claimant's request be reduced by 20.75 hours. (Def.'s Resp. 6.) In her Reply, Claimant withdrew 0.75 hours from her initial request of 46.75 hours (Pl.'s Reply 6) and added 7.5 additional hours for preparation of her Reply (Pl.s' Reply at 8), bringing her total request to 53.5 hours.

The prevailing party has the burden of proving that the hours worked were reasonable.

Seabron v. Astrue, No. 11 CV 1078, 2012 WL 1985681, at *1 (N.D.Ill. June 4, 2012) (citing Hensley v. Eckerhart, 481 U.S. 424, 433 (1983)). Fee requests that are "'excessive, redundant, or otherwise unnecessary'" should be denied. Id. (citing Hensley, 481 U.S. at 434). Courts have recognized that a claimant is entitled to fees incurred in the underlying action as well as time

Of course, Rule 5.2(c)(2) permits Claimant "or any other person" to have electronic access to the full record in this case or any other case at the courthouse.

spent preparing an EAJA petition. See, e.g., Commissioner, INS v. Jean, 496 U.S. 154, 161--62, (1990).

The Commissioner contends that the number of hours expended by Claimant's two attorneys to review the record, write briefs, and prepare the EAJA application in this case was unreasonable given the "straightforward legal issues," "unusually small administrative transcript," and Claimant's "not new or novel" arguments in this case. (Def.'s Resp. at 3--5.) The Commissioner computes and compares the number of hours it apparently took Claimant's attorney to read the administrative record in this case and brief her arguments with her "pages per hour" rates in other Social Security appeals handled by her office. (Def.'s Resp. at 3.) The Commissioner asks that Claimant's compensable hours be limited by a ...


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