United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART PLAINTIFF'S MOTION FOR ATTORNEY FEES AND
STEPHAN M. VIDMAR United States Magistrate Judge
MATTER is before the Court on Plaintiff's Opposed Motion
for Attorney Fees and Costs [Doc. 24] (“Motion”),
filed on May 25, 2018. The Commissioner responded on June 8,
2018. [Doc. 25]. Plaintiff replied on June 20, 2018, [Doc.
26]. The parties have consented to the undersigned's
entering final judgment in this case. [Doc. 15]. Plaintiff
moves the Court for a total award of $8, 216.09 comprising
$7, 623.90 in attorney fees, $20.40 in costs for certified
mail, and $571.79 in gross receipts tax (“GRT”).
[Doc. 24] at 3. Having reviewed the record, the briefing, and
the relevant law, the Court finds that the Motion is
well-taken in part and should be granted in part and denied
in part. The attorney-fees request is reasonable and should
be granted. However, Plaintiff fails to show that costs for
mailing or GRT are compensable under 28 U.S.C. §§
2412 or 1920, and therefore, those costs should not be
awarded. The Motion will be granted in part, and Plaintiff
will be awarded $7, 623.90.
Equal Access to Justice Act (“EAJA”) provides for
an award of attorney fees to a plaintiff when: (1) he is a
prevailing party, (2) the position of the United States was
not substantially justified, and (3) no special circumstances
would make the award unjust. 28 U.S.C. § 2412(d)(1)(A);
Hackett v. Barnhart, 475 F.3d 1166, 1172 (10th Cir.
2007). However, the fees should be “reasonable.”
Comm'r, INS v. Jean, 496 U.S. 154, 161 (1990);
Hackett, 475 F.3d at 1168. “[T]he fee
applicant bears the burden of establishing entitlement to an
award and documenting the appropriate hours expended and
hourly rates.” Hensley v. Eckerhart, 461 U.S.
424, 437 (1983).
is the prevailing party, and Defendant does not argue that
her position was substantially justified or that any special
circumstance would make an award unjust. Rather, the dispute
here is whether the amount of fees is reasonable. There are
two points of contention. First, Defendant argues that costs
for certified mail and GRT are not compensable and should not
be awarded. Second, Defendant argues that the amount of hours
requested is unreasonable and should be reduced.
Plaintiff fails to show that costs for certified mail and GRT
EAJA permits a prevailing party to recover “fees and
other expenses, in addition to any costs awarded, ” and
enumerates items that are included within the definition of
“fees and other expenses.” 28 U.S.C. §
2412(d)(1)(A), (d)(2)(A). While this list is not exhaustive,
the Tenth Circuit has adopted a narrow interpretation of what
constitutes “other expenses, ” excluding such
things as travel expenses and postage fees. Weakley v.
Bowen, 803 F.2d 575, 580 (10th Cir. 1986).
claims $20.40 in costs for certified mail and $571.79 in GRT.
[Doc. 24] at 3. Defendant argues that these should be denied
because neither is among the expenses listed as recoverable
in the relevant statutes. [Doc. 25] at 5 (citing 28 U.S.C.
§§ 1920, 2412(a)(1), (d)(2)(A)). Plaintiff argues
that the Court should grant her request for GRT “given
New Mexico's unique tax laws and [her] complete inability
to pay [the taxes herself].” Id. at 3. She
argues that Defendant pointed to no statute or rule
specifically precluding an award for postage or GRT, and
because both were incidental to the legal representation,
they should be awarded. Id.
movant, it is Plaintiff's burden to show that the she is
entitled to the award. She offers no authority whatsoever
indicating that costs for mailing or GRT are compensable
under §§ 1920 or 2412. She has not met her burden.
The Court is not persuaded that costs for mailing and GRT are
compensable here; those amounts will not be awarded.
The number of hours requested is reasonable.
the reasonableness of the number of hours billed lies within
the court's discretion. Hensley, 461 U.S. at 437
(interpreting attorney-fees request under 42 U.S.C. §
1988); see also Jean, 496 U.S. at 161 (explaining
that once a litigant has established eligibility for fees
under EAJA, “the district court's task of
determining what fee is reasonable is essentially the same as
that described in Hensley.”).
requests $7, 623.90 in attorney fees for 38.7 hours of work.
[Doc. 24] at 1. Defendant argues that this amount should be
reduced because no more than 27 hours would be reasonable
under the circumstances of this case. [Doc. 25] at 3-4.
Defendant argues that the opening brief raised only
“standard” arguments and the 787-page
administrative record was “not particularly
lengthy.” Id. at 3. Defendant further argues
that it was excessive to bill six hours for reviewing the
record because fewer than 500 of the pages were actual
medical records. Id. at 4. Defendant additionally
argues that the other time spent was likewise excessive.
Id. Plaintiff replies that her counsel read every
page in the administrative record, which was necessary to
present concise evidentiary support for each of her three
alleged points of error. [Doc. 26] at 2.
Court finds that the 38.7 hours requested is within the
average range for social security appeals in this district.
See generally Woodrum v. Colvin, No. CIV-12-338-SPS,
2014 WL 3396069, at *2 (E.D. Okla. July 9, 2014)
(unpublished) (“In this Circuit, typical social
security appeals require, on average, twenty to forty total
hours of attorney time.”); Medina v. Astrue,
2010 WL 1254835, at *3 (D. Colo. Mar. 26, 2010) (citing
Hayes v. Sec. of Health and Human Servs., 923 F.2d
418, 422 (6th Cir.1990) (30 to 40 hours was the average
amount of time spent on a social security case) and citing
DeGennaro v. Bowen, 666 F.Supp. 426, 433 (E.D.N.Y.