Barker v. Commissioner of Social Security Administration ( 2019 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Bradley Barker, No. CV-18-08136-PCT-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 attorneys’ fees under the Equal 16 Access to Justice Act (“EAJA”). (Doc. 21.) 17 “The Equal Access to Justice Act (EAJA) instructs that this court ‘shall’ grant 18 attorneys[’] fees to a prevailing plaintiff ‘unless’ the government meets its burden to 19 demonstrate that both its litigation position and the agency decision on review were 20 ‘substantially justified.’” Campbell v. Astrue, 736 F.3d 867, 868 (9th Cir. 2013) (quoting 21 28 U.S.C. § 2412(d)(1)(a)). Here, the government has chosen not to argue that its position 22 was substantially justified (Doc. 22), so the Court must grant attorneys’ fees. See, e.g., 23 Robinson v. Berryhill, 2018 WL 7140957, *2 (9th Cir. 2018) (“Pursuant to the 24 parties’ stipulation and the [EAJA], 24 U.S.C. § 2412(d), attorney’s fees . . . and costs . . . 25 are awarded.”); Wheatley v. Berryhill, 2018 WL 6579351, *1 (9th Cir. 2018) (same). 26 Having determined that Plaintiff is eligible for EAJA fees, the Court must determine 27 what fee is reasonable. Comm’r, I.N.S. v. Jean, 496 U.S. 154, 161 (1990). “The most 28 useful starting point for determining the amount of a reasonable fee is the number of hours 1 reasonably expended on the litigation multiplied by a reasonable hourly rate.” Hensley v. 2 Eckerhart, 461 U.S. 424, 433 (1983); see also Jean, 496 U.S. at 161 (“[O]nce a private 3 litigant has met the multiple conditions for eligibility for EAJA fees, the district court’s 4 task of determining what fee is reasonable is essentially the same as that described 5 in Hensley.”). This is “now called the ‘lodestar’ method” of determining the 6 reasonableness of fees. Costa v. Comm’r of Soc. Sec. Admin., 690 F.3d 1132, 1135 (9th 7 Cir. 2012). 8 Plaintiff’s counsel charged the statutory maximum rates, and the reasonableness of 9 the hourly rates is not in dispute.1 10 The parties dispute whether the amount of time Plaintiff’s counsel billed was 11 reasonable. As a preliminary matter, the reasonableness of the number of hours spent is 12 necessarily a case-specific determination, and it is improper to generalize from other cases 13 and impose “a de facto cap” on the number of hours compensable under the EAJA. Costa, 14 690 F.3d at 1134. The Ninth Circuit has emphasized that dubbing any Social Security case 15 “routine” would be “a misnomer” because the cases “are often highly fact-intensive and 16 require careful review of the administrative record, including complex medical evidence,” 17 such that two cases involving the same issues might nevertheless require different amounts 18 of work. Id. at 1134 n.1. Courts generally should defer to “the winning lawyer’s 19 professional judgment,” and if “the amount of time requested for a particular task is too 20 high,” the Court must explain why. Id. at 1136. Thus, to the extent the Commissioner 21 argues the Court should reduce Plaintiff’s requested fees because (1) the “45.5 hours 22 expended on this case . . . is above the high end of the normal range,” (2) “[a]t 1091 pages, 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 the record in this case was not unusually large,” and (3) “the routine issues are not complex 2 such that they might warrant a higher fee” (Doc. 22 at 2), the Court rejects those arguments 3 as foreclosed by Costa. 4 Instead of generalizing, the Court will consider the reasonableness of the hours 5 billed in this case by examining the timesheets and reviewing the appropriateness of the 6 kinds of tasks that were billed and the amount of time spent on them. Heggem v. Colvin, 7 2016 WL 4194527, *2 (D. Ariz. 2016) (“[T]he Court ‘combed through the record’ as is 8 required for all fee applications brought pursuant to the EAJA.”). 9 Plaintiff billed 23.7 hours for this case in 2018 and 21.8 hours in 2019. (Doc. 21- 10 2.) Multiplying those hours by the statutory rates and adding the two sums, the total amount 11 of attorneys’ fees sought is $9,230.57. (Id.) Adding $400 for costs, the grand total sought 12 is $9,630.57. (Doc. 23 at 5.) The Commissioner contests 2.4 hours of the time billed in 13 2018 as clerical and 6 hours of the time billed in 2019 as excessive, such that the 14 Commissioner believes an award of $7,521.23 is appropriate.2 (Doc. 22 at 3-4.) 15 A. Clerical Tasks 16 Time billed for clerical tasks should not be included in an EAJA award, because 17 such tasks should be subsumed in firm overhead rather than billed. Nadarajah v. Holder, 18 569 F.3d 906, 921 (9th Cir. 2009). This is true regardless of who does the clerical work— 19 a legal assistant, paralegal, or attorney. Missouri v. Jenkins, 491 U.S. 274, 288 n.10 (1989) 20 (non-legal work “is not enhanced just because a lawyer does it”); Neil v. Comm’r Soc. Sec. 21 Admin., 495 Fed. App’x. 845, 847 (9th Cir. 2012) (affirming reduction of fees for “purely 22 clerical tasks such as filing documents and preparing and serving summons” performed by 23 an attorney); McAnally v. Saul, 2019 WL 6179217, *2 (D. Alaska 2019) (deducting time 24 billed by an attorney for clerical tasks); Brandt v. Astrue, 2009 WL 1727472, *4 (D. Or. 25 2009) (same); Gough v. Apfel, 133 F. Supp. 2d 878, 881 (W.D. Va. 2001) (“Purely clerical 26 activities, regardless of who performs them, are considered overhead and are not 27 compensable as EAJA attorney fees.”). 28 2 The Commissioner does not appear to contest the $400 in costs, so the Court assumes the Commissioner actually believes an award of $7,921.23 is appropriate. 1 The Commissioner argues the following time entries include clerical tasks: 2 3 06/11/2018 0.4 hours “Preparation of initial district court documents (Compliant 4 [sic] and Verification (Dkt. 1), Fee Agreement (Dkt. 2-1), 5 Assignment of EAJA Fee (Dkt. 2) and Summons (Dkt. 5)).” 6 06/26/2018 0.2 hours “Preparation of Civil Cover Sheet (Dkt. 1-1).” 7 06/27/2018 0.25 hours “Review of Magistrate Judge Assignment Notice (Dkt. 3) and 8 Scheduling Order (Dkt. 4).” 9 06/28/2018 0.2 hours “Review of Summons Issued.” 10 07/02/2018 0.85 hours “Preparation and mailing of service packets to Defendant 11 (Summons Issued, Civil Cover Sheet, Magistrate Judge 12 Assignment Notice, and Complaint).” 13 08/06/2018 0.2 hours “Review of Notice of Appearance (Dkt. 7).” 14 10/31/2018 0.3 hours “Review of Minute Order reassigning case to Judge Lanza 15 (Dkt. 10).” 16 17 (Doc. 22 at 3; Doc. 21-2 at 1). 18 The Court finds that the block-billed time entry on June 11, 2018 for “preparation 19 of initial district court documents” includes only clerical tasks. Although preparing a 20 complaint ordinarily involves legal work, in this case it did not. The complaint is a 21 boilerplate 20-line document that Plaintiff’s counsel has used in previous cases, such that 22 filling in Plaintiff’s name, the last four digits of his Social Security number, and his city 23 was all that needed to be done. Cf., e.g., Confino v. Commissioner of Social Security 24 Administration, 4:17-cv-00603-BGM, Doc. 1 (complaint filed by Plaintiff’s counsel in 25 previous case). The other documents prepared on June 11, 2018 were also boilerplate 26 documents in which only a few bits of information needed to be plugged in. Preparing a 27 summons is usually a clerical task, Neil, 495 F. App’x at 847, and in this case, preparing 28 the complaint and other initial documents was no different. Preparing the civil cover sheet 1 on June 26, 2018, reviewing the issued summons on June 28, 2018, and mailing a service 2 packet to Defendant on July 2, 2018 were also clerical tasks. 3 On June 27, 2018, Plaintiff’s counsel block-billed for “0.25 hours” (15 minutes) of 4 work on two tasks: (1) reviewing the minute order assigning the case to Judge Rayes, and 5 (2) reviewing Judge Rayes’s scheduling order. It goes without saying that attorneys must 6 review orders issued by the Court, and certainly review of substantive orders is non-clerical 7 in nature. However, these orders fall into a somewhat gray area—they are routinely issued 8 in every Social Security case—and the 3-page scheduling order merely sets out the briefing 9 schedule for Social Security cases, with which Plaintiff’s counsel is already familiar. 10 Moreover, the minute order assigning the case to Judge Rayes (Doc. 3) can easily be read 11 in one to two seconds, and the 3-page scheduling order (Doc. 4) can easily be read in one 12 to two minutes. 13 Likewise, Plaintiff’s counsel billed “0.2 hours” (12 minutes) for reviewing a notice 14 of appearance (Doc. 7) and “0.3 hours” (18 minutes) for reviewing the minute order 15 reassigning this case to the undersigned judge (Doc 10). Both of these tasks should have 16 taken no more than two or three seconds to complete. And although an attorney is 17 responsible for knowing the identity of his opposing counsel and the judge assigned to his 18 case, reading those names requires no legal skill whatsoever. 19 Thus, the Court concludes that reviewing the minute orders assigning the case first 20 to Judge Rayes (Doc. 3) and then to the undersigned judge (Doc. 10) and reviewing the 21 notice of appearance (Doc. 7) are clerical tasks. 22 Reviewing Judge Rayes’s standard scheduling order (Doc. 4)—which has been 23 issued in many cases Plaintiff’s counsel has litigated—is right on the border between 24 clerical and legal work. It’s a close call, but the Court will deem review of this order to be 25 legal work that reasonably could have taken up to two minutes to complete. Thus, an 26 attorney could reasonably round up and bill no more than 0.1 hours (six minutes) for this 27 work. 28 In sum, of the 2.4 hours of time billed in 2018 that the Commissioner characterizes 1 as clerical, the Court finds that, at most, only 0.1 of those hours were appropriately billed. 2 The Court will reduce the EAJA award by 2.3 hours for work that was clerical in nature.3 3 B. Excessive Time Spent 4 “Exorbitant, unfounded, or procedurally defective fee applications—like any other 5 improper position that may unreasonably protract proceedings—are matters that the district 6 court can recognize and discount.” Jean, 496 U.S. at 163. The Ninth Circuit has stated 7 that courts should generally keep in mind that “lawyers are not likely to spend unnecessary 8 time on contingency fee cases in the hope of inflating their fees” because “[t]he payoff is 9 too uncertain, as to both the result and the amount of the fee.” Moreno v. City of 10 Sacramento, 534 F.3d 1106, 1112 (9th Cir. 2008). Here, however, the Court has already 11 noted obvious padding of the bill—as discussed above, there is simply no reasonable 12 explanation for why, for example, reviewing the minute order reassigning this case to the 13 undersigned judge (Doc 10) could have taken “0.3 hours” (Doc. 21-2 at 1). 14 The Commissioner challenges the reasonableness of the amounts of time Plaintiff’s 15 counsel billed for (1) reviewing the Commissioner’s response brief and (2) preparing the 16 reply. (Doc. 22 at 3-4.) 17 The Court will not question the reasonableness of the time Plaintiff’s counsel spent 18 preparing the reply. Plaintiff’s counsel billed 2.9 hours for preparing Part I of the reply (3 19 pages), 4.15 hours for preparing Part II (3.5 pages), 0.6 hours for preparing Part III (a little 20 over a page), 3.35 hours for preparing Part IV (2.5 pages), and 0.3 hours for proofreading 21 and formatting the reply, for a total of 11.3 hours spent on the 11-page reply. Although 22 this strikes the Court as being on the high side, the Court will not second-guess the amount 23 of time Plaintiff’s counsel spent on briefing the winning arguments in this case. 24 3 Plaintiff’s counsel asserted that because he did not seek attorneys’ fees for time spent litigating fees, this offsets any clerical time billed: “Although it is Plaintiff’s right to 25 seek compensation for preparation of [the reply in support of the motion for EAJA fees], . . . little time was expended. This waiver of further fees more than offsets any reduction 26 due to any purely clerical tasks which even theoretically occurred in this matter.” (Doc. 23 at 3.) But “fees for fee litigation should be excluded to the extent that the applicant 27 ultimately fails to prevail in such litigation.” Jean, 496 U.S. at 163 n.10. As this order makes plain, Plaintiff’s counsel did not prevail in the fee litigation. Had Plaintiff’s counsel 28 requested fees for fees, he would not have received them, so assuming arguendo that an “offset” could be appropriate under the right circumstances, there can be no offset here. 1 However, two days before Plaintiff’s counsel devoted 11.3 hours to preparing the 2 reply, Plaintiff’s counsel billed 8.75 hours (525 minutes) for reviewing the Commissioner’s 3 response brief (Doc. 17), which is about 15 pages long.4 (Doc. 21-2 at 2.) That breaks 4 down to a snail-like reading pace of about 35 minutes per page, or 1.25 minutes per line. 5 Assuming that each page contains about 400 words—a high estimate—the entire response 6 contains perhaps 6,000 words. Dividing 6,000 words by 525 minutes, Plaintiff’s counsel 7 read the response at a rate of 11 words per minute—over 18 seconds per word. This pace 8 is extraordinarily and inexplicably slow. The average reading rate for adults is 238 words 9 per minute. Marc Brysbaert, How Many Words Do We Read Per Minute? A Review and 10 Meta-Analysis of Reading Rate, Journal of Memory and Language, Vol. 109 (Dec. 2019), 11 available at https://www.sciencedirect.com/science/article/pii/S0749596X19300786. A 12 reading rate of 156 words per minute would place a person below the 1st percentile of 13 college freshmen. Bartlett v. New York State Bd. of Law Examiners, 226 F.3d 69, 76 (2d 14 Cir. 2000). 15 Plaintiff’s counsel offers no explanation for why it took him 8.75 hours to review 16 the Commissioner’s 15-page response. Plaintiff’s counsel does address the discrepancy 17 between the speed at which he read the response versus the much faster speed at which he 18 read the administrative record by noting that “Plaintiff’s counsel in fact represented 19 Plaintiff before the Administration at the Administrative level,” and therefore “Counsel’s 20 familiarity with this matter provides greater efficiency . . . in reviewing the record in this 21 matter,” whereas “Defendant’s brief was entirely new information, not previously 22 considered by Plaintiff’s Counsel, which is why a reasonable amount of time was required 23 to review Defendant’s arguments.” (Doc. 23 at 4.) This explanation might suffice if 24 Plaintiff’s counsel had read the Commissioner’s brief at a normal pace and read the 25 administrative record at a faster-than-normal pace. But it does not explain why Plaintiff’s 26 counsel read “entirely new information” at a pace bordering on illiteracy. Indeed, a law 27 clerk in the undersigned judge’s chambers—who has limited familiarity with Social 28 4 The first and last page of the 16-page document each contain about a half-page of text. 1 Security cases generally and had no familiarity with the facts of this case—carefully 2 reviewed the Commissioner’s response brief in 15 minutes. 3 Although Plaintiff’s counsel has offered no reasonable explanation for the sluggish 4 pace at which he reviewed the Commissioner’s response, the Court will supply a partial 5 excuse. Perhaps Plaintiff’s counsel was not merely reading while reviewing the response 6 but was also analyzing the arguments therein, taking notes, and cross-referencing other 7 documents as he read. To be clear, Plaintiff’s counsel did not assert this was true, and if it 8 were true, Plaintiff’s counsel should have provided a more thorough description of his 9 activities. Nevertheless, even assuming that Plaintiff’s counsel’s review of the response 10 entailed more than mere reading, the Court finds that one hour is the high end of what could 11 be reasonably billed for this activity. 12 Thus, the Court will reduce the award sought to reflect that the amount of time billed 13 for substantive legal work (non-clerical) was excessive by 7.75 hours. Although the 14 Commissioner only asked for an excessiveness reduction of 6 hours, the Court has a duty 15 to thoroughly review the record and determine what is reasonable. The Court determines 16 that a greater reduction is necessary. 17 Plaintiff’s counsel billed 23.7 hours on this case in 2018, which the Court will 18 reduce by 2.3 hours for work that was clerical in nature, such that the award will be based 19 on 21.4 hours in 2018. Plaintiff’s counsel billed 21.8 hours in 2019, which the Court will 20 reduce by 7.75 hours for excessiveness, such that the award will be based on 14.05 hours 21 in 2019. Multiplying those hours by the statutory rates (21.4 x $201.60 = $4,314.24; 14.05 22 x $204.25 = $2,869.71) and adding the two sums, the total amount of attorneys’ fees 23 awarded is $7,183.95. Adding $400 for costs, the grand total is $7,583.95. 24 Accordingly, 25 IT IS ORDERED that Plaintiff’s motion for EAJA attorneys’ fees (Doc. 21) is 26 granted in part and denied in part, and Plaintiff is awarded $7,583.95 in attorneys’ fees and 27 costs. 28 IT IS FURTHER ORDERED that if the government determines that Plaintiff does 1 || not owe a debt subject to offset under the Treasury Offset Program, 31 U.SC. § 3716(c), 2|| and the government agrees to waive the requirements of the Anti-Assignment Act, 31 U.S.C. § 3727, the government shall pay the EAJA award to Plaintiff's counsel. If there is 4|| a debt owed under the Treasury Offset Program, the remaining EAJA award after offset || will be paid by a check made out to Plaintiff but delivered to Plaintiffs counsel. 6 Dated this 18th day of December, 2019. 7 8 Po 10 United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -9-