# Martinez v. Social Security Administration

> District Court, E.D. Louisiana · November 13, 2024

URL: https://www.frixlaw.com/law-library/cases/10767565

## Case

- **Court:** District Court, E.D. Louisiana
- **Decided:** November 13, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10767565

## How later opinions describe it (automated extraction)

- noting that litigants “take their chances” when submitting vague fee applications

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
FAUSTO MARTINEZ CIVIL ACTION
VERSUS NO: 23-01852
COMMISSIONER OF SOCIAL SECTION: “J” (4)
SECURITY ADMINISTRATION
REPORT AND RECOMMENDATION
Before the Court is Plaintiff Fausto Martinez’s (“Martinez”) EAJA Motion for Award of
Attorney Fees (R. Doc. 27) pursuant to the Equal Access to Justice Act, 28 U.S.C. §2412
(“EAJA”). The matter has been referred to the undersigned Magistrate Judge to determine the
appropriate amount and to submit Proposed Findings and Recommendations pursuant to Title 28
U.S.C. § 636(b)(1)(B).1
I. Background
On June 2, 2023, Martinez filed a complaint against the Defendant, the Commissioner of

the Social Security Administration (“the Commissioner”). R. Doc. 1 at 1. Martinez alleged that
the Commissioner improperly denied his application for Disability Insurance Benefits and
Supplemental Security Income. Id.
The undersigned magistrate judge issued a Report and Recommendation on February 16,
2024, recommending that the Commissioner’s decision be reversed and remanded. R. Doc. 26.
The Report and Recommendation was adopted. R. Doc. 29 at 1. The Court accordingly remanded
the matter for further development of the administrative record pursuant to 42 U.S.C. § 405(g). Id.
On May 15, 2024, Martinez filed a motion for attorney’s fees pursuant to EAJA. R. Doc.
27. Therein, Martinez requested $21,017.98 for 94 hours of attorney work and $3,731.25 for 49.75

1 See R. Doc. 30, Order of Reference (Barbier, C.).
hours of law student work for a combined total of $24,749.23. R. Doc. 27-1 at 1-2. The
Commissioner filed a response in opposition. R. Doc 28. The Commissioner contends that
Martinez is not yet a prevailing party and is thus not entitled to EAJA fees at this time. Id. at 1.
II. Scope of Recoverable EAJA Fees
Under the EAJA, a prevailing party is entitled to attorney’s fees in any civil action brought

by or against the United States unless the court finds that the United States was “substantially
justified or that special circumstances make an award unjust[.]” See 28 U.S.C. § 2412 (d)(1)(A).
Section 2412 (d) serves two purposes: “to ensure adequate representation for those who need it
and to minimize the costs of this representation to taxpayers.” Baker v. Bowen, 839 F.2d 1075,
1083 (5th Cir. 1988) (emphasis added). Both goals need to be considered when evaluating the
Plaintiff’s motion.
In this case, the parties dispute whether Martinez is a prevailing party because there has
not been a judgment entered in his favor. A party prevails by succeeding on “any significant issue
in litigation which achieves some of the benefit the parties sought in bringing suit.” Hensley v.

Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 1939, 76 L.Ed.2d 40 (1983). A party seeking an
award of fees in an action against the Agency must file a petition for fees “within thirty days of
final judgment in the action.” Hensley, 461 U.S. at 433. A final judgment is defined as “a
judgment that is final and not appealable.” 28 U.S.C. § 2412(d)(2)(G).
A Sentence 4 remand terminates the civil action seeking judicial review of the Agency's
judgment and becomes “final” under 28 U.S.C. § 2412(d)(2)(G) once the time for appeal has run.
Shalala v. Schaefer, 509 U.S. 292, 299–300 (1993). Accordingly, a Sentence 4 remand is
considered a final judgment. 28 U.S.C. § 2412(d)(2)(G). A court may issue a remand order under
Sentence 4 of § 205(g) of the Social Security Act, (a.k.a. a sentence 4 remand) if the court decides,
with or without comments from either the claimant or the SSA, that additional development and/or
the evaluation of evidence is needed to decide the case.  Breaux v. U.S.D.H.H.S., 20 F.3d 1324
(5th Cir. 1994).
III. Analysis
A. Timeliness of the Subject Motion

At the time the subject Motion was filed, no judgment had been entered in Martinez’s favor.
Instead, the Report and Recommendation issued by the undersigned on February 16, 2024, was
adopted by the district judge on August 26, 2024. See R. Doc. 29. Consistent with the Report and
Recommendation, the district judge reversed and remanded the matter for further development of
the administrative record. Id. However, Martinez filed the subject Motion on May 15, 2024, four
months before the issue was ripe for review. See R. Doc. 27. Therefore, at the time Martinez filed
the subject Motion, he was not a prevailing party.
However, since that time Martinez has become a prevailing party pursuant to Sentence 4
of § 205(g) of the Social Security Act since the sentence 4 remand order in this matter has become

final. Therefore, while the Commissioner is technically correct, requiring a resubmission of the
same fee application would do nothing more than result in the additional fees along with
resubmission of the same documents for the Court’s consideration. Therefore, the Court will
proceed with reviewing the fee application.
B. The Fee Application
1. Reasonable Hourly Rate
First, the Court must determine a reasonable hourly rate to award. Under Title 28 U.S.C.
§ 2412(d)(2)(A), reasonable attorney’s fees are “based upon prevailing market rates for the kind
and quality of the services furnished, except that . . . attorney fees shall not be awarded in excess
of $125 per hour unless the court determines that an increase in the cost of living or a special
factor, such as the limited availability of qualified attorneys for the proceedings involved, justifies
a higher fee.”
The Fifth Circuit has applied the “lodestar” method for determining the reasonableness of
attorneys’ fees, which utilizes measures like the attorney’s usual non-contingent hourly rate or the

prevailing market rate charged in the relevant community for similar legal services. Brown v.
Sullivan, 917 F.2d 189, 190 (5th Cir. 1990). Under this approach, “the number of attorney hours
expended on litigation multiplied by a reasonable hourly rate” is what is known as “lodestar”.
Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). However, the claimant must carry the burden of
proof for showing that the requested rate is in line with the prevailing market rate. See Blum v.
Stenson, 468 U.S. 886, 895 n. 11 (1984). Additionally, the product of the lodestar calculation can
be adjusted based on the twelve factors established in Johnson v. Georgia Highway Express, Inc.,
488 F.2d 714, 717-19 (5th Cir. 1974).
The EAJA provides that other adjustments can be made to the attorneys’ fees. 28 U.S.C.

§ 2412(d)(2)(A)(ii). However, any requested rates higher than the statutory cap of $125 must be
justified by an increase in the cost of living or a special factor, “such as the limited availability of
qualified attorneys for the proceedings involved[.]” Id. Furthermore, while the EAJA allows for
adjustment of the hourly rate, it does not require it. Baker, 839 F.2d at 1084. Instead, the EAJA
“vests the district courts with discretion to arrive at a reasonable rate for attorneys’ fees based on
cost-of-living adjustments and other factors.” Yoes v. Barnhart, 467 F.3d 426, 426 (5th Cir. 2006).
In this case, Martinez contends that he is entitled to attorneys’ fees in the amount of
$24,749.23, based on an hourly rate of $232.85 for 2023 work and $241.18 for 2024 work by
attorneys Todd Hebert and Jesse Lind. R. Doc. 27-1 at 3-4. Martinez alleges that these rates
represent the cost-of-living adjustments allowed by the EAJA. Id. Martinez also seeks the award
of attorney’s fees for law student work by Bonnie Rees at a rate of $75.00. Id.
The Commissioner objects to Martinez’s requested hourly rates because neither the
annual nor the semi-annual average CPI figures are yet available in 2024. R. Doc. 28 at 3. As a
result, the Commissioner requests that that the hourly rate for attorney work performed in both

2023 and 2024 should be properly calculated by using the 2023 annual CPI figure of $233.94. Id.
“When a given locale has experienced a significant change in the cost of living, the court
may increase the hourly rate beyond the nominal statutory cap.” Baker, 839 F.2d at 1084.
However, the Fifth Circuit has rejected the argument that increases in the EAJA statutory cap must
precisely track increases in the cost of living. Id.
Thus, the Fifth Circuit has characterized figures adjusted for cost of living as the maximum,
since “Congress intended to provide attorneys at most with an hourly rate in present-day dollars
commensurate with seventy-five dollars in 1981.” Baker, 839 F.2d at 1084. See also Washington
v. Barnhart, 93 F. App'x 630, 631 (5th Cir. 2004) (per curiam) (“[E]xcept in unusual

circumstances, if there has been a significant increase in the cost of living that would justify an
increase in the fee, the increase should be granted even though the ultimate award need not track
the cost-of-living index”). The Fifth Circuit has also held “that cost-of-living adjustments under
the EAJA must be made to reflect the appropriate rate in the year in which the services were
rendered.” Perales v. Casillas, 950 F.2d 1066, 1076 (5th Cir.1992). Therefore, EAJA fees must
be adjusted yearly. To do otherwise “in effect award [s] interest for the ... delay in payment” and
“is a prohibited award of interest against the United States.” Perales, 950 F.2d at 1076–77.
In this case, Martinez contends that he used the hourly attorney rate calculation for 2023
and 2024 using the CPI for U.S. City Average: $125.00 (Baseline Hourly rate) x 290.038 (National
CPI-U (Southern Region)) average for January 2023) / 155.70 (National Baseline CPI-U for March
1996) = $232.85. R. Doc. 27-1 at 4.
The Commissioner does not contest the use of the CPI, except to suggest that the Court
should use the annual CPI figure for 2023 since the figures for 2024 have not been released. R.
Doc. 28 at 3. Therefore, the Commissioner contends that the proper rate is $233.94. Id.

As an initial matter, the Court finds that Martinez’s calculation is incorrect since the
National CPI-U average for the Southern Region for January 2023 is 290.438, not 290.038. See
R. Doc. 27-2 at 1. Furthermore, the Court finds that the appropriate calculation for determining
the reasonable rate under the EAJA is the percent change in the annual average multiplied by the
baseline rate. See Woods v. Kijakazi, No. 20-3423, 2022 WL 3336446, at *2-3 (E.D. La. May 18,
2022) (Roby, M.J.) (calculating the reasonable rate under the EAJA in New Orleans as: the percent
difference between the annual average CPI-U for a South City Size Class B/C2 for the given year
and 19963, multiplied by the baseline hourly rate of $125.00).
Given that the work in this matter occurred between 2023 and 2024, the Court finds that

the reasonable rate should be determined by the annual average CPI-U for a South City Size Class
B/C for 2023, as the annual average for 2024 has not been determined. Therefore, the Court finds
that the proper calculation is: (187.155 / 100)4 x $125.00 = $233.94375. Accordingly, the Court
finds that the rate of $233.94 is the reasonable rate for the billing attorney, adjusted by the CPI-U.
Therefore, the reasonable rate for work performed by Todd Hebert in this matter is $233.94.

2 A City Size Class B/C refers to a population of 2.5 million or less.
3 1996 was the year that the current baseline cost-of-living rate was set. See Nkenglefac v. Garland, 64 F.4th 251, 254
(5th Cir. 2023). See also 28 U.S.C. § 2412(d)(2)(A)(ii).
4 According to the U.S. Bureau of Labor Statistics, the Annual Average CPI-U for a South City Size Class B/C in
2023 was 187.155. Consumer Price Index Overview Table – Southeast, U.S. Bureau of Labor Statistics,
https://www.bls.gov/regions/southeast/data/xg-tables/ro4xg01.htm
Regarding the work performed by the other billing attorneys, Martinez failed to present
any evidence of the adequacy of the hours charged by Jesse Lind, who billed 65.2 hours, or Lily
McHaley, who billed 5 hours. The applications as to Lind and McHaley are therefore inadequate
and should be denied.
Martinez also seeks an hourly rate of $75 for the law student work performed by Bonnie

Rees. R. Doc. 27-1 at 4. The Commissioner does not challenge the reasonableness of Rees’s
hourly rate. R. Doc. 28 at 2-3. The Court therefore finds that a paralegal rate of $75 is reasonable.
2. Hours Reasonably Spent on Litigation
Martinez seeks to recover for 94 hours of work on the subject case, for a total award of
$24,749.23. R. Doc. 27-1 at 4. He contends that these hours and fee amount are reasonable. Id.
However, the Commissioner contends that the request for 94 hours of attorney time is
excessive and that the time records are inadequate to show that the time spent on the requested
hours are reasonable. R. Doc. 28 at 3-5.
The fee applicant bears the burden of supporting the reasonableness of all time

expenditures. Hensley v. Eckerhart, 461 U.S. 424, 437 (1983). Moreover, district courts have
considerable discretion in this area because of its familiarity with the case and the attorneys. See
Associated Builder & Contractors, Inc. v. Orleans Parish School Bd., 919 F.2d 374, 379 (5th Cir.
1990).
The record shows that Todd Hebert billed 37.75 hours, Jesse Lind billed 65.25 hours, Lily
McHaley billed 5 hours, and Bonnie Rees billed 55.3 hours.  However, the billing time records
submitted to the Court indicate that there were four people billing on the file and that the total
hours charged to the file equals 163.3 hours. Martinez does not indicate which hours were
voluntarily excluded as billing judgment. Additionally, while Martinez seeks recovery for 94
hours, the time sheets for Hebert and Reese actually total 93.05 hours. Having reviewed the total
and individual hours billed, the Court finds that the hours billed by Lind and McHaley are not
reasonable and therefore should be excluded. Having determined that 93.05 hours were billed, the
Court will now proceed with reviewing the time entries of Hebert and Rees to determine their
reasonableness.

It is well settled that supporting documentation for attorney's fees must be of sufficient
detail and probative value to enable the court to “determine with a high degree of certainty” that
the billing is reasonable. Miss. State Chapter Operation Push v. Mabus, 788 F.Supp. 1406, 1416
(N.D. Miss. Mar. 4, 1992) (Davidson, G.); see League of United Latin American Citizens No. 4552
v. Roscoe ISD, 119 F.3d 1228, 1233 (5th Cir. 1997) (noting that litigants “take their chances” when
submitting vague fee applications). Descriptions such as “legal issues,” “conference re: all
aspects,” and “call re: status” are vague descriptions. In re Donovan, 877 F.2d 982, 995 (D.C. Cir.
1989); Lalla v. City of New Orleans, 161 F.Supp.2d 686, 706 (E.D. La. Apr. 4, 2001). In reviewing
attorney's fees applications, the court may also reduce or eliminate hours if the documentation of

those hours is “vague or incomplete,” and must consider whether proper billing judgment was
exercised. Lalla, 161 F.Supp.2d at 706.
A review of the time sheets indicates that many of the entries by Hebert and Rees are vague.
Hebert’s vague entries total 13.255 and Rees’ vague entries total 20.96. In fact, these entries are
so vague that it impossible to determine what the subject of the work was and how it relates to the
SSA claim. Therefore, they should be disallowed.
3. Lodestar Calculation

Given the foregoing reasonable rates and hours, the Court calculates the following Lodestar
amount:
Atty/Paralegal  Total Hours  Hours  Billing Rate  Reasonable
Billed  Deducted  Fees
Bonnie Reese  55.3  20.9  $     75.00    $        2,580.00
Todd Hebert  37.75  13.25  $   233.94    $        5,731.53
$        8,311.53
4. Adjusting the Lodestar

5Messages with Bonnie 10/06/2023 0.25; Meeting with Jesse 10/09/2023 0.25; Review and reply to messages from
Bonnie 09/18/2023 0.25: Review email from Bonnie 10/02/2023 0.25; Review email from Bonnie 10/16/2023 0.25;
Meeting with Jesse and Ranie 04/28/2023 0.75; Meeting with Jesse 10/19/2023 0.25; Messages with Jesse
10/20/2023 0.25; Further messages with Jesse 10/20/2023 0.25; Prepare an email to Jesse 10/20/2023 0.25; Review
email from the court 10/20/2023 0.25; Review and reply to email from Jesse. 10/24/2023 0.25; Review email from
Jesse 09/11/2023 0.25; Emails with Jesse 10/26/2023 0.25; Prepare an email to Jesse 10/26/2023 0.25; Prepare an
email to Jesse 10/30/2023 0.25; Prepare an email to Jesse and Bonnie 09/08/2023 0.25; Messages with Bonnie
10/02/2023 0.25; Messages with Jesse 09/07/2023 0.25; Calls to the Judge's Office 11/01/2023 0.25; Prepare an
email to Jesse 11/01/20230.25; Review email from Hannah  07/06/2023  0.25;  Review  email  from  the  court
11/01/2023 0.25; Review email and research from Jesse 09/06/2023 0.25; Meeting with Jesse 09/06/2023 0.25;
Messages with Bonnie 09/29/2023 0.25; Messages with Jesse 05/25/2023 0.25; Messages with Jesse 08/22/2023
0.25; Prepare an email to Jesse 08/17/2023 0.25; Meeting with Jesse and Hannah 06/02/2023 0.25; Review email
from the court 06/07/2023 0.25; Meeting with Jesse 02/29/2024 0.25; Messages with Jesse 12/27/2023 0.25;
Additional messages to Jesse 12/27/2023 0.25; Prepare an email to Jesse 12/28/2023 0.25;  Review email from the
court  06/09/2023 0.25; Messages with Jesse 09/22/2023 0.25; Messages with Hannah 07/05/2023 0.25; Meeting
with Jesse 07/26/202 0.25; Messages with Jesse 01/16/2024 0.25; Call with Jesse 01/16/2024 0.25; Review research
from Jesse 01/16/2024 0.25; Prepare an email to Jesse 06/15/2023 0.25; Meeting with Jesse 06/15/2023 0.25;
Meeting with Jesse 01/18/2024 0.25; Messages with Jesse 01/30/2024 0.25; Messages with Hannah 07/12/2023
0.25; Review email from the court 01/30/2024 0.25; Review the court record 10/04/2023  0.25; Messages with Jesse
10/04/2023 0.25; Prepare an email to the Defense Attorney 10/05/2023 0.25.
6 Working on brief 10/05/2023 4; called outreach  10/06/2023 0.5; research/writing 10/06/2023 4; prep uncontested
facts 09/18/2023 0.5; review memo 09/18/2023 2; call NOLA SSA 10/13/2023 0.15;confer with Jesse 09/15/2023
0.5; meeting with client 09/15/2023 0.75; called client 09/15/2023 0.5; call client 09/14/2023 0.25; called client
09/22/2023 0.25; message Jesse 09/22/2023 0.25; msg from Jesse 09/22/2023 0.25; meeting with client/Jesse
09/01/2023 4; call client 08/31/2023 0.25; meeting about case 08/28/2023 0.25; Discuss File with Counsel
12/04/2023 0.5; call opposing council 10/04/2023 0.5; meet with Jesse 10/04/2023 1; researched judge info
09/19/2023 0.5.
After the lodestar is determined, the Court may then adjust the lodestar upward or
downward depending on the twelve factors set forth in Johnson, 488 F.2d at 717-19. However,
“the Supreme Court has limited greatly the use of the second, third, eighth, and ninth factors for
enhancement purposes, and accordingly, the Fifth Circuit has held that ‘[e]nhancements based
upon these factors are only appropriate in rare cases supported by specific evidence in the record

and detailed findings by the courts.’” Wells Fargo Equip. Fin., Inc. v. Beaver Const., LLC, No. 10-
386, 2011 WL 5525999, at *3 (W.D. La. Oct. 18, 2011) (Hill, M.J.) (citing Walker v. U.S.
Department of Housing and Urban Development, 99 F.3d 761, 771–72 (5th Cir. 1996)). Finally,
to the extent that any Johnson factors are subsumed in the lodestar, they should not be reconsidered
when determining whether an adjustment to the lodestar is required. Migis v. Pearle Vision, Inc.,
135 F.3d 1041, 1047 (5th Cir. 1998). The Court has carefully evaluated the Johnson factors and
finds no adjustment of the lodestar is warranted.
IV. Recommendation
Accordingly,

IT IS RECOMMENDED that the Plaintiff’s Motion for Attorneys’ Fees (Rec. Doc. 27)
be GRANTED, and that the Plaintiff be awarded reasonable attorney’s fees in the amount of
$8,311.53.
A party’s failure to file written objections to the proposed findings, conclusions, and
recommendation in a Magistrate Judge's Report and Recommendation within fourteen (14) days
after being served with a copy shall bar that party, except upon grounds of plain error, from
attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by
the District Court, provided that the party has been served with notice that such consequences will
result from a failure to object. See Douglass v. United Services Auto. Ass'n, 79 F.3d 1415, 1430
(Sth Cir. 1996).

New Orleans, Louisiana, this 12th day of November 2024.

y —,

ZN
— CY
KAREN WELLS RO gy )
UNITED STATES MAGISTRATEJUDGE

ll

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10767565. Public record. Not legal advice.