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CIMADOR v. SECRETARY OF HHS

October 7, 1986

Julia A. CIMADOR, Plaintiff,
v.
SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant



The opinion of the court was delivered by: ROSENBERG

 ROSENBERG, District Judge.

 This matter is before me for disposition of a motion for counsel fees submitted by counsel for the plaintiff for his representation of the plaintiff in his successful quest for Social Security benefits.

 A court may award compensation only for time actually devoted to prosecuting the matter in the judicial branch and not for administrative time. Guido v. Schweiker, 775 F.2d 107, C.A.3, 1985.

 Therefore, I consider only the time allegedly devoted by counsel to prosecuting the action in both this court and the Court of Appeals. Counsel elected to bill in minimum time segments of thirty minutes, except for the completion of one form. As a matter of law, I find this is unreasonable. See: City of Riverside v. Rivera, 477 U.S. 561, 106 S. Ct. 2686, 91 L. Ed. 2d 466 (1986). While counsel may have elected to employ this time frame, I find his assertion incredible that it took a half-hour to read a motion for enlargement of time, and an hour to read a briefing schedule. Similar expanded billings of time are demonstrated throughout counsel's fee application. In awarding fees I have adjusted those times to more reasonable fifteen minute segments.

 Perhaps the most flagrant example of unreasonable billing is the claim by counsel for 25 hours spent allegedly in preparation of his brief to the Court of Appeals. This brief is identical in all respects with the brief submitted to the District Court (for which he claimed 10 hours), except for the jurisdictional statement required for the appellate brief. To have attempted to charge another 10 hours for a brief already submitted would have amounted to double billing but to charge 25 extra hours for this document is fee exploitation at its worst by a member of this Bar.

  The district court brief and the identical appellate brief *fn1" each contain eight numbered pages, and two additional pages consisting of a table of contents and a table of authorities. Each brief cites only two cases and two statutes, and contains three pages of quoted transcript. I find that the preparation of this brief by a practitioner who claims expertise in this area of law should have taken less than 8 hours to prepare. I find that the attachment of a jurisdictional statement to the Court of Appeals brief and sending two copies of the brief to the United States Attorney, would be lavishly billed at one hour additional time, only. The twenty-four phantom hours must be stricken as plain profiteering.

 It is customary for an attorney to use a common vehicle, theory, method, pleadings or briefs in pursuing his professionalism and he should be paid for each time he utilizes it -- but in separate unconnected cases. When it is only a matter of repetition for the same client, it is only one single effort and compensable as one single effort. When counsel has used a brief in a district court for a client and re-used it verbatim in the Court of Appeals for the same client, that client had, since he had already paid for it, been entitled to its re-use and only liable for additions required in the second utilization.

 It is obvious that the only change or addition here was attached to the brief, consisting of a jurisdiction statement required by the Court of Appeals, and that 2 copies had been sent to the United States Attorney. Its preparation, the jurisdictional statement and the sending of the 2 copies of the brief to the United States Attorney is for what counsel should be entitled to compensation. Its use again and the charge of twenty-five hours which counsel did not expend when he says he did, puts this claim of twenty-five hours in the category of perpetration of deception.

 I said in Jim Gregris et al. v. Sanford Edberg, individually, 645 F. Supp. 1153, (W.D.Pa.1986), at pages 1160 and 1161:

 
"LaFontaine is credited with the statement that 'Help yourself, and heaven will help you'. It should not appear so from an overabundance of aid by the court to the enhancement of attorneys' fees. Presently, an applicable quotation for attorneys might be 'Help yourself and the courts will help you'. For, if we, the courts, do not concern ourselves with the interests of ordinary people and instead stand as an advocate for the enhancement of attorney's fees, it will prove that ordinary people will be left without counsel, or at the mercy of counsel and be compelled to become their own advocates. We should, in evaluating the liberal principle that attorneys are entitled to fees, be alert to, and restrict where possible, over-evaluation, self-love and self-enrichment through the aid of the courts. In the end, when it is through governmental channels, it is the public who must ultimately pay the bill.
 
In our experience in allowing attorneys' fees, we seldom see attorneys underrate themselves and very seldom see attorneys underrate the value of their services, but the vast majority overrate themselves and require careful examination for the purpose of making payment truly for the services necessarily and well rendered."

 And at page 1161, I said,

 
"That Congress and the courts have graciously seen fit to aid justice by authorizing courts to impose the unjust costs of a disfavored litigant upon him and reimburse the successful litigant should evoke a spirit of cooperation in all lawyers in order to convince the public that the legal profession consists of truly honorable and trustworthy servants upon whom it relies.

 Recognizing that in Hensley v. Eckerhart, 461 U.S. 424, 103 S. Ct. 1933, 76 L. Ed. 2d 40 (1983) the Court was considering the award of attorney's fees under 42 U.S.C. § 1988, the rationale utilized there may likewise be employed in this case "the amount of a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate." Id. at 433, 103 S. Ct. at 1939, emphasis added.

 The Congress of the United States and the Federal courts have been highly favorable to insure payment of reasonable fees for services reasonably, properly and actually rendered. But when an attorney is ungrateful and cannot appreciate the basis and reasoning upon which attorney's fees ought to be claimed and rendered, it would probably be more a matter of justice if we applied what Judge Dumbauld said in Brown v. Stackler, 612 F.2d 1057, C.A.7, 1980, that where a claim for attorney fees is obviously inflated to an intolerable degree, a court may refuse to award any fees whatsoever to the prevailing plaintiff.

 I shall not be so harsh as to believe that any attorney is not entitled to some fee in spite of his efforts to procure funds at the expense of others. Under these circumstances, I will allow counsel an amount for a reasonable fee as being the number of hours reasonably expended on the litigation, multiplied by a reasonable hourly rate. Hensley v. Eckerhart, supra.

 Since counsel, at the most, could have reasonably devoted only 39 and 1/4 hours to this litigation, *fn2" I find him entitled to compensation at a rate ordinarily awarded by this court to an experienced Social Security practitioner of $75.00 per hour. I find counsel is entitled to receive fees in the amount of $2,943.00. It will be so ordered.

 The Findings of Fact and Conclusions of Law are incorporated in this Memorandum in accordance with Federal Rule of Civil Procedure No. 52. *fn3"

 ORDER OF COURT

 AND NOW, TO-WIT, this 7th day of October 1986, for the reasons set forth in the foregoing Memorandum, IT IS ORDERED that counsel be entitled to receive attorney's fees in the amount of $2,943.00, and that he be paid this amount.

 EXHIBIT A

 CLAIMANT'S BRIEF

 Statement of Issue

 WHETHER THE ADMINISTRATIVE LAW JUDGE ERRED IN FAILING TO GRANT THE CLAIMANT DISABILITY INSURANCE BENEFITS UPON A FINDING (No. 5) THAT SHE RETAINED THE RESIDUAL ...


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