United States District Court, W.D. Michigan, Southern Division
Lisa Capozio, o.b.o. B.C., a minor, Plaintiff,
Commissioner of Social Security, Defendant.
ORDER ADOPTING REPORT AND RECOMMENDATION
L. Maloney United States District Judge.
matter arises from an appeal of the final decision of the
Commissioner of Social Security. The Court ultimately
reversed the Commissioner's determination and remanded
the matter under Sentence Four for further factual findings.
Plaintiff subsequently filed the now pending motion for
attorney fees under the Equal Access to Justice Act (EAJA).
The magistrate judge issued a report recommending that fees
be awarded in part. (ECF No. 25 R&R.) Plaintiff filed
objections. (ECF No. 26.) The Commissioner filed a response.
(ECF No. 27.)
72(a) allows a party to object to a ruling by a magistrate
judge by filing objections in the district court where the
case is assigned. Fed.R.Civ.P. 72(a). Under the Rule, the
district court judge Amust consider timely objections and
modify or set aside any part of the order that is clearly
erroneous or is contrary to law.@ Id. The United
States Supreme Court and the Sixth Circuit Court of Appeals
have stated that Aa finding is >clearly erroneous= when
although there is evidence to support it, the reviewing court
on the entire evidence is left with the definite and firm
conviction that a mistake has been committed.@ United
States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)
(explaining the clearly erroneous standard under Rule 52(a));
Hagamanv.Comm=rofInternalRevenue, 958 F.2d 684, 690
(6th Cir. 1992). The district court reviews the legal
conclusions of a magistrate judge under the contrary to law
standard. Gandee v. Glaser, 785 F.Supp. 684, 686
(S.D. Ohio 1992). The reviewing court must exercise
independent judgment with respect to those legal conclusions
and may overturn those conclusions which contradict or ignore
applicable precepts of law, as found in the Constitution,
statutes, or case precedent. Doe v. Aramark Ed.
Res., 206 F.R.D. 459, 461 (M.D. Tenn. 2002) (quoting
Gandee, 785 F.Supp. at 686).
39.85 hours are unreasonable to review the transcript and
prepare the initial and reply briefs. (R&R at 2-3
PageID.780-81.) The magistrate judge recommends approving
fees for 20 hours. See Glass v. Sec'y of Health and
Human Servs., 822 F.2d 19, 20 (6th Cir. 1987).
objects. Plaintiff explains that the administrative record
was lengthy (approximately 500 pages) and counsel did not
represent the party at the administrative hearing. Plaintiff
also explains why several attorneys expended time on the
matter. Finally, Plaintiff insists that counsel's hours
were reasonable under Hayes v. Secretary of Health and
Human Services, 923 F.2d 418 (6th Cir. 1990).
objection is OVERRULED. The Court notes that Plaintiff
requests fees for time billed by at least three attorneys.
Fairly summarized, Barry Schultz (1.6 hours) acted as a
consultant, Daniel Dukich (39.6 hours) did most of the
research and writing, and Frederick Daley (4.4 hours) acted
as the lead attorney, reviewing all the relevant paperwork
and coordinating tasks. The billing sheet shows some
redundancy in tasks performed. For example, all three
attorneys reviewed the ALJ's decision, and billed time
for that task. The magistrate judge noted examples of
inefficiency and unreasonable time on tasks for experienced
attorneys. One example, counsel spent 2.1 hours to research
and draft the standard of review. Counsel has not identified
any particularly novel or complex issues that arose in this
disability case. An experienced attorney should be able to
more efficiently identify the critical documents within the
Administrative Record that were necessary for review. The
magistrate judge recommended crediting hours on the low end
of the scale of reasonableness, see Glass, 822 F.2d
at 20, while Plaintiff requests credit for hours at the upper
end of the scale for reasonableness, see Hayes, 923
F.2d at 420. See Coates v. Colvin, No. 12-cv-13900,
2014 WL 1389328 at *4 (E.D. Mich. Apr. 9, 2014) (noting that,
within this circuit, 20-30 hours is the general range for
time spent on social security appeals with 40 hours
“representing the ‘outer limits' of a
reasonable amount of time[.]”). Plaintiff's
reasoning is not persuasive. That an award of 40 hours may be
reasonable under some circumstances is not a justification
for an award of 40 hours in this case.
hours are unreasonable to respond to objections. (R&R at 3
PageID.781.) The magistrate judge recommends approving fees
for 1.5 hours. (Id.)
objects. Plaintiff reasons that the magistrate judge
overlooked what must be reviewed before the response can be
drafted, including reviewing the magistrate judge's
report and recommendation on the merits of the claim and the
objection is OVERRULED. Counsel requests 6.1 hours for time
reviewing the magistrate judge's merits review, the
Commissioner's objections, and for time drafting the
response. Again, all three attorneys were involved in
preparing Plaintiff's response to the Commissioner's
objections to the magistrate judge's merits review, and
all three billed time for that task. Of that time, the
magistrate judge recommended reducing the 4.3 hours dedicated
to drafting the response to only 1.5 hours. Plaintiff's
four-page response to the Commissioner's objections
dedicates most of the space to summarizing the relevant
portions of the report and recommendations and the
objections. Plaintiff concludes each section with a brief
explanation of why the magistrate judge was correct. A
reasonable amount of time for drafting the response to the
objections is 1.5 hours.
hours are unreasonable to prepare the reply to the
Commissioner's response to the motion for fees. (R&R at 3
PageID.781.) The magistrate judge recommends reducing the
time to 1.5 hours. (Id.)
states only that the magistrate judge acted arbitrarily and
did not consider all the steps necessary for preparing the
application for EAJA fees.
objection is OVERRULED. In the Court's experience, almost
four hours of time to prepare the reply is unreasonable. The
Court awards 1.5 hours in time for the reply brief in support
of EAJA fees.
appropriate hourly rate is $175 per hour. (R&R at 4
PageID.782.) Plaintiff does not specifically object to this
recommendation. (ECF No. 26 at 6 PageID.791.)
hours are unreasonable for paralegal tasks in this case. (R&R
at 4 PageID.782.) The magistrate judge recommends 4.25 hours.
(Id.) Plaintiff ...