Opinion
No. C00-0162
December 12, 2001
ORDER
This matter comes before the court pursuant to the plaintiff's application for attorney fees under 28 U.S.C. § 2412 and 42 U.S.C. § 406(b). The plaintiff requests two thousand nine hundred ninety two dollars and fifty cents ($2,992.50) under the Equal Access to Justice Act (EAJA). The amount represents payment for twenty one hours worked at one hundred forty two dollars and fifty cents ($142.50). The defendant has no objection to an award in the amount requested by the plaintiff for the fees under the EAJA. The plaintiff also requests that this court award thirteen thousand one hundred forty five dollars and twenty five cents ($13,145.25) resulting from the work involved in presenting the plaintiff's case to this court for judicial review. The defendant contests an award in this amount for the plaintiff's work. The defendant points out that an award of thirteen thousand one hundred forty five dollars and twenty five cents ($13,145.25) for twenty one hours of work is equivalent to earning six hundred twenty five dollars and ninety six cents ($625.96) per hour worked. The defendant contends that this amount is unreasonable and should not be awarded to the plaintiff. The court believes that the amount requested is reasonable but that fees awarded by the court should be for work done in court. The remaining fees should be awarded by the Commissioner of Social Security.
42 U.S.C. § 406 (b) provides as follows:
(1)(A) Whenever a court renders judgment favorable to a claimant under this subchapter who was represented before the court by an attorney, the court may determine and allow as part of its judgment a reasonable fee for such representation, not in excess of 25 percent of the total of the past due benefits to which the claimant is entitled by reason of such judgment, and the Commissioner of Social Security may, notwithstanding the provisions of section 405(i) of this title, certify the amount of such fee for payment to such attorney out of, and not in addition to, the amount of past-due benefits. In case of any such judgment, no other fee may be payable or certified for payment for such representation except as provided in this paragraph.
When Congress enacted 42 U.S.C. § 406(b)(1) its intent was to insure that the majority of the Social Security funds were paid to deserving claimants, while, at the same time, encouraging representation by attorneys with the award of reasonable attorney fees. McDannel v. Apfel, 78 F. Supp.2d 944, 951 (S.D.Iowa 1999). Both the Northern and Southern districts of Iowa require adequate itemization of the time claimed. Local Rule 54.2 states:
The claimed amount shall be supported by adequate itemization, including the amount of time claimed for any specific task as well as the hourly rate claimed. Expenses shall be separately claimed. The itemization shall also include a separate summary indicating how much total time was expended on each major category of work performed such as drafting pleadings, motions, and briefs; legal research; investigation; interviewing; trial preparation and trial.
The Court noted in McDannel, 78 F. SUPP.2d at 948, that each case must be determined individually and the relative experience and expertise of counsel should be factored in when determining the amount of time reasonably expended. In determining a "reasonable fee" within the meaning of 42 U.S.C. § 406(b)(1), the Court must look to Eighth Circuit precedence for guidance as to what factors to consider in reviewing the record of the previous proceedings and the application of the plaintiff's attorney. Shepherd v. Apfel, 981 F. SUPP. 1188, 1191 (8th Cir. 1997). The twelve factors initially set out in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir 1974), and referred to by the Supreme Court in Hensley v. Eckerhart, 461 U.S. 424, 430 n. 3, are:
(1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the skill requisite to perform the legal service properly; (4) the preclusion of employment by the attorney due to the acceptance of the case (5) the customary fees; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the "undesirability of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases.
In this case the attorney for the plaintiff has adequately itemized the time spent on the preparation of this case. He has also stated his hourly rate for the type of work for which he normally charges a hourly fee is $200. This certainly seems like a reasonable fee in light of the attorney's experience, reputation, and ability. This was a judicial review of a Social Security case, the attorney for the plaintiff spent twenty one hours preparing this case for presentation to this court. The attorney for the plaintiff had the requisite skill to perform this legal work, he has an excellent reputation as a Social Security lawyer, and he won an award of benefits for his client in this case. Based on the factors listed above, this Court finds that a $200 hourly fee is reasonable for the work done by the attorney for the plaintiff in this case. The court awards four thousand two hundred dollars ($4,200) to the attorney for the plaintiff.
IT IS ORDERED that the court awards Four Thousand Two Hundred Dollars ($4200) in fees for work performed in this court. Of this, Two Thousand Nine Hundred Ninety-Two Dollars and fifty cents ($2992.50) shall be paid by the defendant pursuant to the Equal Access to Justice Act. The case is remanded to the Commissioner of Social Security for an award of attorney fees for work done before the Commissioner.