Latahotchee v. Commissioner of Social Security Administration ( 2021 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Kimberly Ann Latahotchee, No. CV-19-05668-PHX-DWL 10 Plaintiff, ORDER 11 v. 12 Commissioner of Social Security Administration, 13 Defendant. 14 15 Pending before the Court is Plaintiff’s motion for EAJA fees (Doc. 21) and 16 memorandum in support thereof (Doc. 22). The motion is granted and fees are awarded in 17 the amount of $10,057.90. 18 I. Legal Standard And The Parties’ Positions 19 “The Equal Access to Justice Act (EAJA) instructs that this court ‘shall’ grant 20 attorneys[’] fees to a prevailing plaintiff ‘unless’ the government meets its burden to 21 demonstrate that both its litigation position and the agency decision on review were 22 ‘substantially justified.’” Campbell v. Astrue, 736 F.3d 867, 868 (9th Cir. 2013) (quoting 23 28 U.S.C. § 2412(d)(1)(a)). Here, the government has chosen not to argue that its position 24 was substantially justified (Doc. 23 at 1 n.1), so the Court must grant attorneys’ fees. See, 25 e.g., Robinson v. Berryhill, 2018 WL 7140957, *2 (9th Cir. 2018) (“Pursuant to the 26 parties’ stipulation and the [EAJA], 24 U.S.C. § 2412(d), attorney’s fees . . . and costs . . . 27 are awarded.”); Wheatley v. Berryhill, 2018 WL 6579351, *1 (9th Cir. 2018) (same). 28 Having determined that Plaintiff is eligible for EAJA fees, the Court must determine 1 whether the fee award requested is reasonable. Comm’r, I.N.S. v. Jean, 496 U.S. 154, 161 2 (1990). “The most useful starting point for determining the amount of a reasonable fee is 3 the number of hours reasonably expended on the litigation multiplied by a reasonable 4 hourly rate.” Hensley v. Eckerhart, 461 U.S. 424, 433 (1983); see also Jean, 496 U.S. at 5 161 (“[O]nce a private litigant has met the multiple conditions for eligibility for EAJA fees, 6 the district court’s task of determining what fee is reasonable is essentially the same as that 7 described in Hensley.”). This is “now called the ‘lodestar’ method” of determining the 8 reasonableness of fees. Costa v. Comm’r of Soc. Sec. Admin., 690 F.3d 1132, 1135 (9th 9 Cir. 2012). 10 Plaintiff’s counsel charged the statutory maximum rates, and the reasonableness of 11 the hourly rates is not in dispute.1 12 The parties dispute whether the amount of time Plaintiff’s counsel billed was 13 reasonable. The reasonableness of the number of hours spent is necessarily a case-specific 14 determination, and it is improper to generalize from other cases and impose “a de facto 15 cap” on the number of hours compensable under the EAJA. Costa, 690 F.3d at 1134. The 16 Ninth Circuit has emphasized that dubbing any social security case “routine” would be “a 17 misnomer” because the cases “are often highly fact-intensive and require careful review of 18 the administrative record, including complex medical evidence,” such that two cases 19 involving the same issues might nevertheless require different amounts of work. Id. at 20 1134 n.1. Courts generally should defer to “the winning lawyer’s professional judgment,” 21 and if “the amount of time requested for a particular task is too high,” the Court must 22 explain why. Id. at 1136. 23 1 Attorneys’ fees pursuant to the EAJA “shall not be awarded in excess of $125 per 24 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 25 a higher fee.” 28 U.S.C. § 2412(d)(2)(A). “Appropriate cost-of-living increases are calculated by multiplying the $125 statutory rate by the annual average consumer price 26 index figure for all urban consumers (‘CPI–U’) for the years in which counsel's work was performed, and then dividing by the CPI–U figure for March 1996, the effective date of 27 EAJA’s $125 statutory rate.” Thangaraja v. Gonzales, 428 F.3d 870, 876–77 (9th Cir. 2005). However, the Ninth Circuit has simplified this process by posting the statutory 28 maximum rates from 2009 to the present on its website, available at https://www.ca9.uscourts.gov/content/view.php?pk_id=0000000039. 1 Plaintiff originally requested $9,226.78 in his motion for EAJA attorneys’ fees, as 2 his counsel spent 7.6 hours on his case in 2019, 34.4 hours in 2020, and 2.5 hours in 2021. 3 (Doc. 22 at 10; Doc. 22-2 at 2-3.) Defendant opposed the amount of fees requested and 4 asserted that the Court should “reduce Plaintiff’s fee request by $3,053.81, and award a fee 5 of $6,172.97.” (Doc. 28 at 1.) Plaintiff filed a reply, in which Plaintiff asserted that “[t]he 6 additional 4.0 hours to prepare [the] reply brief, at the current hourly rate of $207.78, when 7 added to the original EAJA request, equals $10,057.90, which should be the current EAJA 8 award.” (Doc. 27 at 12.) 9 II. Analysis 10 On March 31, 2021, in another Social Security appeal, the Court issued an order 11 granting the full amount of EAJA fees sought, rejecting every argument the Commissioner 12 made. Murrieta v. Comm’r of Soc. Sec. Admin., 2021 WL 1208980 (D. Ariz. 2021). 13 The Commissioner’s response in this case—filed on May 4, 2021—repeats these 14 same failed arguments, often verbatim, in a brief that is nearly identical to the response 15 brief the Commissioner filed in Murrieta. This approach is surprising and unhelpful. 16 So here we go again. 17 The Court will consider the reasonableness of the hours billed in this case by 18 examining the timesheets and reviewing the appropriateness of the kinds of tasks that were 19 billed and the amount of time spent on them. Heggem v. Colvin, 2016 WL 4194527, *2 20 (D. Ariz. 2016) (“[T]he Court ‘combed through the record’ as is required for all fee 21 applications brought pursuant to the EAJA.”). 22 The Commissioner argues that Plaintiff’s fee request is unreasonable because (1) 23 Plaintiff failed to affirmatively advance the reasons why the fee request is reasonable (Doc. 24 23 at 2-3), (2) the time Plaintiff’s counsel spent reviewing the record and drafting the 25 complaint is unreasonable because it involved the work of two attorneys and because a 26 “simple” complaint, such as one a pro se litigant might draft using a standard form, is 27 sufficient (id. at 4-7), (3) the time spent drafting and revising the opening brief was 28 unreasonable because two attorneys worked on it and “[a]s an experienced attorney in 1 social security matters, Mr. Caldwell would have taken less time to draft the brief on his 2 own” (id. at 7-9), and (4) fees for reviewing filed documents are unreasonable (id. at 10). 3 The Court has carefully reviewed Plaintiff’s attorney’s itemization of services (Doc. 4 22-2 at 2-3) and concludes that the hours spent on this case do not include impermissible 5 duplication of time or otherwise unreasonable expenditures of time. None of Defendant’s 6 arguments compel a reduction of the fee award requested. 7 As the Court already determined in Murrieta: 8 Defendant’s first argument lacks merit. Plaintiff submitted an itemization of services which lists every billable task Plaintiff’s counsel undertook and how 9 much time was spent on each activity. This itemization is adequate for the Court’s consideration; Plaintiff need not preemptively guess what 10 reasonableness challenges might be forthcoming. Indeed, the fact that the time was spent indicates that Plaintiff’s counsel believed it needed to be 11 spent. [L]awyers are not likely to spend unnecessary time on contingency fee cases in the hope of inflating their fees” because “the payoff is too 12 uncertain. Although it is a plaintiff’s burden to demonstrate that the hours spent were reasonable, a plaintiff can do this by affirmatively submitting an 13 itemization of services and then by defending against whatever challenges a defendant mounts in its opposition. 14 15 2021 WL 1208980 at *2 (citation and internal quotation marks omitted). See also 16 Gallagher v. Comm’r of Soc. Sec. Admin., 2021 WL 2895288, *3 (D. Ariz. 2021) (same). 17 The Court also rejects the Commissioner’s second and third arguments. First, the 18 Court already rejected, in Murrieta, the argument that a Social Security plaintiff’s counsel 19 should not devote time to reviewing the record below and drafting the complaint because 20 a “simple” complaint, such as one a pro se litigant might draft using a standard form, is 21 sufficient. 2021 WL 1208980 at *3 (“Proceeding pro se is possible but far from ideal. The 22 purpose of hiring competent counsel is the benefit a plaintiff receives in the quality of 23 representation. . . . The Court considers it a given that a competent lawyer would review 24 the case before drafting and filing a complaint. . . . [F]ailure to do so is sanctionable. . . . 25 [P]reparation at the inception of a case is an earmark of capable representation.”); see also 26 Garcia v. Comm’r of Soc. Sec. Admin., 2019 WL 4673335, *2 (D. Ariz. 2019) (“[T]ime 27 spent at the complaint stage is time that will serve counsel well when the merits briefs are 28 eventually prepared. Indeed, it is possible, as counsel explains, that a well prepared 1 complaint can persuade the Commissioner that this case should be remanded before the 2 case is fully briefed, which would save all parties time and money.”); Garcia v. Comm’r 3 of Soc. Sec. Admin., 2021 WL 347784, *1 (D. Ariz. 2021) (same, noting “the Court has 4 already addressed the Commissioner’s criticism”). Second, the Court has rejected— 5 numerous times—the argument collaboration between two lawyers amounts to 6 impermissible duplication of effort. Id. (“[T]he Court finds no fault with the fact that two 7 attorneys collaborated on this case and recognizes that legal collaboration often requires 8 multiple attorneys to review the same documents in order to contribute meaningfully to the 9 drafting and editing process.”); Andreason v. Comm’r of Soc. Sec. Admin., 2020 WL 10 5544367, *2 (D. Ariz. 2020) (same); Maske v. Comm’r of Soc. Sec. Admin., 2020 WL 11 6562343, *6 (D. Ariz. 2020) (“The Court agrees with Plaintiff’s assertion that “if this were 12 a case brought by some big-shot downtown law firm, no one would blink an eye about 13 more than one attorney working on a case,” and the Court declines to “blink an eye” here.”); 14 Caggiano v. Comm’r of Soc. Sec. Admin., 2021 WL 2779499, at *5 (D. Ariz. 2021) (no 15 reduction of fee award due to four attorneys collaborating on the case because “the 16 duplicative work here was necessary to the litigation, and each duplicate billing entry 17 includes time billed for substantive work”). See also Moreno v. City of Sacramento, 534 18 F.3d 1106, 1114–15 (9th Cir. 2008) (“[T]he district court may not set the fee based on 19 speculation as to how other firms would have staffed the case. The cost effectiveness of 20 various law firm models is an open question. . . . Modeling law firm economics drifts far 21 afield of the Hensley calculus and the statutory goal of sufficiently compensating counsel 22 in order to attract qualified attorneys to do civil rights work.”). 23 Finally, the Court already determined—again, in Murrieta—that fees for reviewing 24 filed documents are not unreasonable per se. 2021 WL 1208980 at *4 (“[T]he Court 25 recognizes that one last quick review of the draft after filing may still be deemed 26 reasonable, with the understanding that if something crucial were missed, leave to 27 supplement could be sought.”). Although “[a]t a certain point, carefulness can be 28 excessive,” the Court nevertheless concluded that “1.2 hours spent reviewing pleadings 1 and briefs after they were filed—0.2 hours for the complaint, 0.5 hours for the opening 2 brief, and 0.5 hours for the reply brief—are not overkill and can be properly included in a 3 reasonable fee award.” Id. Here, the Commissioner gripes about a mere 0.6 hours spent 4 reviewing filed briefs (0.1 hours on the complaint, 0.5 on the opening brief). (Doc. 23 at 5 12.) If 1.2 hours is reasonable, it follows that half that amount of time is reasonable as 6 well. 7 The Commissioner cites Gines v. Comm’r, 2:19-cv-04479-JJT, Doc. 29 at 2-3, for 8 the proposition that—under the circumstances of that case—the amount of time spent 9 drafting the complaint was either “excessive” or “render[ed] the time spent on the next step 10 of drafting the opening brief excessive.” (Doc. 23 at 6.) The short, unpublished opinion 11 in Gines does not disclose how much time had been spent drafting the complaint and how 12 much time had been spent drafting the opening brief, nor did the Court discuss the 13 complexity of the issues at stake in that case or how much of the opening brief merely 14 duplicated the complaint. At any rate, the Court has expressly rejected the argument that 15 the complaint in a Social Security appeal should not be substantive. Murrieta, 2021 WL 16 1208980 at *3.2 Furthermore, here the complaint is fairly short and simply sets forth the 17 background facts, a summary of the ALJ’s decision, and a bulleted list of Plaintiff’s 18 challenges to the ALJ’s decision. (Doc. 1.) Although it would be preferable for Plaintiff’s 19 counsel to eschew block billing in the future, the Court has no trouble accepting Plaintiff’s 20 assertion that a significant portion of the time spent at the complaint stage was devoted to 21 review of the record and issue spotting (Doc. 27 at 6-7)—the work that had to be done 22 before the complaint could be drafted. Murrieta, 2021 WL 1208980 at *3 (“[A] portion of 23 the 4.7 hours was spent reviewing the ALJ decision and portions of the 1,908-page file, 24 and the Court considers it a given that a competent lawyer would review the case before 25 2 “[T]he Social Security Act provides that ‘[t]he court may, on motion of the Commissioner of Social Security made for good cause shown before the Commissioner 26 files the Commissioner’s answer, remand the case to the Commissioner of Social Security for further action by the Commissioner of Social Security.’ 42 U.S.C. § 405(g). The 27 existence of this provision demonstrates that a detailed complaint has utility. A relatively small amount of time spent ‘in the hope of such an outcome is not unreasonable.’” 28 Murrieta, 2021 WL 1208980 at *3 (quoting Maske, 2020 WL 6562343 at *6). 1 drafting and filing a complaint.”). Finally, the 25-page opening brief does not merely 2 duplicate the 5-page complaint,3 and the Court “will not second-guess the amount of time 3 Plaintiff’s counsel spent on briefing the winning arguments in this case.” Andreason, 2020 4 WL 5544367 at *2. Although the complaint may have served as a preliminary outline of 5 the major points Plaintiff planned to make, preparing the opening brief required a 6 substantial amount of work far exceeding what drafting the complaint required. “By and 7 large, the court should defer to the winning lawyer’s professional judgment as to how much 8 time he was required to spend on the case; after all, he won, and might not have, had he 9 been more of a slacker.” Moreno, 534 F.3d at 1112. 10 The Commissioner also cites Rudder v. Comm’r of Soc. Sec. Admin., 2020 WL 11 6869410, *2 (D. Ariz. 2020), a case in which the Court reduced the fee award in part 12 because there was “a substantial amount of boilerplate language in the briefings.” In a 13 specialized area such as Social Security appeals, it is unsurprising that some boilerplate 14 language would appear in the pleadings and briefs. Nevertheless, both the complaint and 15 the opening brief in this action are composed mainly of case-specific facts and analysis, 16 not regurgitated boilerplate. 17 And the Commissioner cites Thomas v. Comm’r of Soc. Sec. Admin., 2:18-cv- 18 04230-JZB, Doc. 32 at 4 for the proposition that 12 hours of collaborative review on the 19 opening brief was excessive under the circumstances of that case, where the “opening brief 20 borrowed heavily from the detailed complaint.” (Doc. 23 at 9.) Here, the opening brief 21 does not borrow heavily from a detailed complaint, so Thomas is not on point. The Court 22 agrees with Plaintiff that “presenting decisions in other cases, with no showing of a 23 comparison to the facts of this case, does not advance the Commissioner’s position.” (Doc. 24 27 at 7.) 25 Having prevailed entirely in the fees motion, Plaintiff is also entitled to the fees 26 3 “[A]lthough reducing the amount of an award is appropriate where excessive time 27 is recorded for briefing that merely regurgitates previous briefing or consists entirely of boilerplate material, such is not the case here.” Andreason, 2020 WL 5544367 at *2 28 (citation omitted). incurred in litigating it. Murrieta, 2021 WL 1208980, at *5; Andreason, 2020 WL 2|| 5544367, at *3; Maske, 2020 WL 6562343, at *7. The Commissioner is urged to keep this || principle in mind if tempted, in a future case, to submit another brief filled with verbatim versions of arguments the Court has repeatedly rejected. 5 Accordingly, 6 IT IS ORDERED that Plaintiff's motion for EAJA fees (Doc. 20) is granted and 7\| Plaintiff is awarded $10,057.90 in attorneys’ fees. 8 IT IS FURTHER ORDERED that if the government determines that Plaintiff does □□ not owe a debt subject to offset under the Treasury Offset Program, 31 U.SC. § 3716(c), 10|| and the government agrees to waive the requirements of the Anti-Assignment Act, 31 11 || U.S.C. § 3727, the government shall pay the EAJA award to Plaintiffs counsel. If there is 12 || a debt owed under the Treasury Offset Program, the remaining EAJA award after offset 13} will be paid by a check made out to Plaintiff but delivered to Plaintiff's counsel. 14 Dated this 22nd day of July, 2021. 15 16 Lm ee” 17 f t _o——— Dominic W, Lanza 18 United States District Judge 19 20 21 22 23 24 25 26 27 28 -8-