Andreason v. Commissioner of Social Security Administration ( 2020 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Philana Andreason, No. CV-18-04102-PHX-DWL 10 Plaintiff, ORDER 11 v. 12 Commissioner of Social Security Administration, 13 Defendant. 14 15 Pending before the Court is Defendant’s motion for leave to file a surreply in 16 response to Plaintiff’s reply in support of her motion for attorneys’ fees under the Equal 17 Access to Justice Act (“EAJA”). (Doc. 20.) Defendant indicated that Plaintiff did not 18 consent to the motion (id. at 1), but Plaintiff did not file an opposition. Defendant’s motion 19 will be granted, and the Clerk of Court will be directed to file the surreply lodged at Doc. 20 21. 21 Also pending is Plaintiff’s motion for EAJA fees (Doc. 16) and memorandum in 22 support thereof (Doc. 17). “The Equal Access to Justice Act (EAJA) instructs that this 23 court ‘shall’ grant attorneys[’] fees to a prevailing plaintiff ‘unless’ the government meets 24 its burden to demonstrate that both its litigation position and the agency decision on review 25 were ‘substantially justified.’” Campbell v. Astrue, 736 F.3d 867, 868 (9th Cir. 2013) 26 (quoting 28 U.S.C. § 2412(d)(1)(a)). Here, the government has chosen not to argue that its 27 position was substantially justified (Docs. 18, 21), so the Court must grant attorneys’ fees. 28 See, e.g., Robinson v. Berryhill, 2018 WL 7140957, *2 (9th Cir. 2018) (“Pursuant to the 1 parties’ stipulation and the [EAJA], 24 U.S.C. § 2412(d), attorney’s fees . . . and costs . . . 2 are awarded.”); Wheatley v. Berryhill, 2018 WL 6579351, *1 (9th Cir. 2018) (same). 3 Having determined that Plaintiff is eligible for EAJA fees, the Court must determine 4 what fee is reasonable. Comm’r, I.N.S. v. Jean, 496 U.S. 154, 161 (1990). “The most 5 useful starting point for determining the amount of a reasonable fee is the number of hours 6 reasonably expended on the litigation multiplied by a reasonable hourly rate.” Hensley v. 7 Eckerhart, 461 U.S. 424, 433 (1983); see also Jean, 496 U.S. at 161 (“[O]nce a private 8 litigant has met the multiple conditions for eligibility for EAJA fees, the district court’s 9 task of determining what fee is reasonable is essentially the same as that described 10 in Hensley.”). This is “now called the ‘lodestar’ method” of determining the 11 reasonableness of fees. Costa v. Comm’r of Soc. Sec. Admin., 690 F.3d 1132, 1135 (9th 12 Cir. 2012). 13 Plaintiff’s counsel charged the statutory maximum rates, and the reasonableness of 14 the hourly rates is not in dispute.1 15 The parties dispute whether the amount of time Plaintiff’s counsel billed was 16 reasonable. As a preliminary matter, the reasonableness of the number of hours spent is 17 necessarily a case-specific determination, and it is improper to generalize from other cases 18 and impose “a de facto cap” on the number of hours compensable under the EAJA. Costa, 19 690 F.3d at 1134. The Ninth Circuit has emphasized that dubbing any social security case 20 “routine” would be “a misnomer” because the cases “are often highly fact-intensive and 21 require careful review of the administrative record, including complex medical evidence,” 22 such that two cases involving the same issues might nevertheless require different amounts 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 of work. Id. at 1134 n.1. Courts generally should defer to “the winning lawyer’s 2 professional judgment,” and if “the amount of time requested for a particular task is too 3 high,” the Court must explain why. Id. at 1136. 4 Plaintiff originally requested $8,801.30 in her motion for EAJA attorneys’ fees, as 5 her counsel spent 6.7 hours on her case in 2018, 34.2 hours in 2019, and 2.1 hours in 2020. 6 (Doc. 17 at 9; Doc. 17-2 at 2-3.) Defendant opposed the amount of fees requested and 7 argued that “$6,625.65 is a more reasonable amount for Plaintiff to receive for litigating 8 this case.” (Doc. 18 at 5.) Plaintiff filed a reply, in which Plaintiff asserted that “[t]he 9 additional three hours to prepare [the] reply brief, at the current hourly rate of $205.25, 10 when added to the original EAJA request, equals $9,417.05, which should be the current 11 EAJA award. (Doc. 19 at 10.)2 12 The Court has carefully reviewed Plaintiff’s attorney’s itemization of services (Doc. 13 17-2 at 2-3) and concludes that the hours spent on this case do not include clerical work, 14 impermissible duplication of time, or otherwise unreasonable expenditures of time. The 15 Court finds no fault with the fact that two attorneys collaborated on this case and recognizes 16 that legal collaboration often requires multiple attorneys to review the same documents in 17 order to contribute meaningfully to the drafting and editing process. Cf. Moreno v. City of 18 Sacramento, 534 F.3d 1106, 1115 (9th Cir. 2008) (when associates work on a case, the 19 partner who supervises them must review the documents). Furthermore, although reducing 20 the amount of an award is appropriate where excessive time is recorded for briefing that 21 merely regurgitates previous briefing or consists entirely of boilerplate material, see, e.g., 22 Barker v. Comm’r of Soc. Sec. Admin., 2019 WL 6893013, *2 (D. Ariz. 2019), such is not 23 the case here. The Court appreciates Plaintiff’s counsel’s concession that “sections of the 24 opening brief . . . are mostly boilerplate” and agrees with counsel’s assertion that this 25 “partial criticism does not invalidate time spent on the overall brief.” (Doc. 19 at 8.) “[T]he 26 Court will not second-guess the amount of time Plaintiff’s counsel spent on briefing the 27 28 2 Defendant’s short surreply takes issue with some of the assertions in Plaintiff’s reply but does not advance any new arguments challenging the requested EAJA fees. (Doc. 21.) 1 winning arguments in this case.” Barker, 2019 WL 6893013 at *4. “By and large, the 2 court should defer to the winning lawyer’s professional judgment as to how much time he 3 was required to spend on the case; after all, he won, and might not have, had he been more 4 of a slacker.” Moreno, 534 F.3d at 1112. 5 Defendant argues that Plaintiff’s request for 1.5 hours in fees on May 12, 2020 6 should be reduced by 0.5, apparently taking issue with the fact that Plaintiff’s counsel’s 7 tasks included reviewing Defendant’s response brief, as well as sending an email. (Doc. 8 18 at 5.) Although block-billing of this nature is frowned upon,3 none of the tasks listed 9 appear inappropriately billed, and the mere 1.5 hours spent would not appear excessive 10 even if all of that time had been attributed only to drafting the 17-page motion for EAJA 11 fees. 12 As for the 0.1 hours expended on April 26, 2019, although the item description is 13 inadequately vague,4 the Court is disinclined to reduce the award in this case due to an 14 inadequate description of a 0.1 hour time entry, particularly in light of the fact that the 15 remainder of the entries reflect efficient use of time. Moreover, as none of Defendant’s 16 other objections to Plaintiff’s fees request carry any weight, carping over the item 17 description of a 0.1 hour task is rather disappointing. 18 Having prevailed entirely in the fees motion, Plaintiff is also entitled to the fees 19 incurred in litigating it. Jean, 496 U.S. at 163 n.10. 20 Accordingly, 21 IT IS ORDERED that Defendant’s motion for leave to file a surreply (Doc. 20) is 22 granted. The Clerk of Court will be directed to file the surreply lodged at Doc. 21. 23 IT IS FURTHER ORDERED that Plaintiff’s motion for EAJA fees (Doc. 16) is 24 granted and Plaintiff is awarded $9,417.05 in attorneys’ fees. 25 3 “[B]lock billing makes it more difficult to determine how much time was spent on 26 particular activities.” Welch v. Metro. Life Ins. Co., 480 F.3d 942, 948 (9th Cir. 2007). 27 4 “[P]laintiff's counsel “is not required to record in great detail how each minute of his time was expended,” but rather “can meet his burden—although just barely—by simply 28 listing his hours and “identify[ing] the general subject matter of his time expenditures.” Fischer v. SJB-P.D. Inc., 214 F.3d 1115, 1121 (9th Cir. 2000). 1 IT IS FURTHER ORDERED that, pursuant to the parties’ stipulation, if the 2|| government determines that Plaintiff does not owe a debt subject to offset under the 3|| Treasury Offset Program, 31 U.SC. § 3716(c), and the government agrees 4|| to waive the requirements of the Anti-Assignment Act, 31 U.S.C. § 3727, the government 5 || shall pay the EAJA award to Plaintiff's counsel. If there is a debt owed under the Treasury 6|| Offset Program, the remaining EAJA award after offset will be paid by a check made out 7\| to Plaintiff but delivered to Plaintiff's counsel. 8 Dated this 16th day of September, 2020. 9 10 Lom ee” ul f CC —— Dominic W. Lanza 12 United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 _5-