United States District Court, D. Arizona
Bernardo P. Velasco United States Magistrate Judge
action commenced when Plaintiff Jessie Marie Betancourt
sought judicial review of Defendant's decision denying
her applications for disability insurance benefits and
supplemental security income. Upon consideration of the
parties' briefs on the issue, this Court entered an Order
reversing the Commissioner's decision and remanding the
matter for further proceedings. (Doc. 30; see also
Judgment (Doc. 31)). Pursuant to the Equal Access to Justice
Act (“EAJA”), 28 U.S.C. § 2412(d), Plaintiff
now seeks attorney's fees in the amount of $8, 828.98 for
time that Plaintiff's attorney, Mark Caldwell, spent
working on her case before this Court, including time spent
briefing the instant fee petition. (Plaintiff's Motion
for Award of Attorney's Fees (Docs. 32); see
also Plaintiff's Brief in Support of Motion for
Award of Attorney's Fees under the EAJA
(“Plaintiff's Brief”) (Doc. 32-2);
Itemization of Services (Doc. 32-1); fee agreements with
Plaintiff (Doc. 32-3); Affidavit of Plaintiff's Counsel
(Doc. 32-4); Plaintiff's Reply and supplement (Docs. 34,
35)). Defendant has filed a Response in opposition to
Plaintiff's Motion (Doc. 33) and Plaintiff has filed a
Reply and supplemental affidavit of counsel. (Docs. 34, 35).
For the following reasons, the Court grants Plaintiff's
Motion for Award of Attorney's Fees.
EAJA authorizes federal courts to award reasonable
attorney's fees, court costs, and other expenses when a
party prevails against the United States, unless the court
finds that the government's position was substantially
justified or that special circumstances make an award unjust.
28 U.S.C. § 2412(d)(1)(A); see also Ibrahim v.
United States Dep't. of Homeland Security, 835 F.3d
1048, 1054 (9th Cir. 2016); Tobler v.
Colvin, 749 F.3d 830, 832 (9th Cir. 2014);
Meier v. Colvin, 727 F.3d 867, 870 (9th
Cir. 2013). Defendant does not contest that Plaintiff is a
prevailing party. See e.g. Akopyan v. Barnhart, 296
F.3d 852, 854-55 (9th Cir. 2002); Gutierrez v.
Barnhart, 274 F.3d 1255, 1257 (9th Cir.
2001). Defendant concedes that the government's position
was not substantially justified. (Response at 2). However,
Defendant objects to the reasonableness of the amount of fees
requested. (Id. at 4-6).
fees and expenses awarded under the EAJA must be reasonable.
See 28 U.S.C. § 2412(d)(2)(A). The district
court has discretion to determine a reasonable fee award.
See 28 U.S.C. § 2412(b); Costa v.
Commissioner of Soc. Sec., 690 F.3d 1132, 1135
(9th Cir. 2012). Generally, courts should
“defer to the ‘winning lawyer's professional
judgment as to how much time he was required to spend on the
case.'” Costa, 690 F.3d at 1136 (quoting
Moreno v. City of Sacramento, 534 F.3d 1112, 1112-13
(2008)). The fee applicant bears the burden of documenting
the appropriate hours expended in the litigation and must
submit evidence in support of those hours worked. Gates
v. Deukmejian, 987 F.2d 1392, 1397 (9th Cir.
1992) (citation omitted). The party opposing the fee
application has a burden of rebuttal that requires submission
of evidence to the district court challenging the accuracy
and reasonableness of the hours charged or the facts asserted
by the prevailing party in its submitted affidavits.
Id. at 1397-98 (citations omitted). In determining
whether fees are reasonable under the EAJA, the Ninth Circuit
applies the principles set forth in Hensley v.
Eckerhart, 461 U.S. 424, 437 (1983), and other cases
interpreting 42 U.S.C. § 1988. Ibrahim, 835
F.3d at 1060 n.13; Costa, 690 F.3d at 1135
(citations omitted). The court may not reduce requested fees
in social security disability appeals without providing
relatively specific reasons. Costa 690 F.3d at
EAJA petition, Plaintiff originally requested $8, 543.56 for
44.9 hours of work billed at a rate of $190.28. (Plaintiff's
Brief at 12-13; Itemization of Services). However, in her
Reply, Plaintiff requested additional fees in the amount of
$285.42 for 1.5 hours, at a rate of $190.28 per hour, that
counsel spent preparing the Reply to Defendant's
opposition to Plaintiff's fee petition, thus resulting
in a fee request for a total of $8, 828.98. (Reply at 2).
See INS v. Jean, 496 U.S. 154 (1990) (once a
litigant has satisfied the eligibility requirements for fees
under the EAJA, the district court may award fees and costs
expended in litigating the prevailing party's entitlement
objects to the fee sought, arguing that it is unreasonable.
According to Defendant, Plaintiff's counsel should be
compensated for only 35 hours of work, resulting in a fee
award of $6, 659.80, because Plaintiff's case was
“routine” in that it did not involve an unusually
long transcript or complex or novel issues. (Response, at
3-5). Defendant also argues that Plaintiff's fee should
be reduced because she achieved only “limited”
success. (Id. at 5). Under the EAJA, “a
district court's award of attorney's fees must be
‘reasonable.'” Sorenson v. Mink, 239
F.3d 1140, 1145 (9th Cir. 2001) (quoting Hensley,
461 U.S. at 433)). “‘[T]he most useful starting
point for determining the amount of a reasonable fee is the
number of hours reasonably expended on the litigation
multiplied by a reasonable hourly rate.'”
Ibrahim, 835 F.3d at 1060 (quoting Schwarz v.
Sec. of Health & Human Servs., 73 F.3d 895, 901 (9th
support the position that counsel's hours should be
reduced to 35 hours, Defendant relies on case law from
various district courts indicating that twenty to forty hours
is the benchmark for social security disability cases and
cites Justice Sotomayor's concurrence in Astrue v.
Ratliffe, 586 U.S. 599, 599 (2010) that “EAJA fee
awards, which average only $3, 000 to $4, 000 per case, have
proved to be a remarkably efficient way of improving access
to the courts for the statute's intended beneficiaries,
including thousands of recipients of Social Security and
veteran's benefits each year.” (Response at 4-5).
Nothing in Justice Sotomayor's concurrence suggests that
a request for more than $3, 000 to $4, 000 in a particular
case would be unreasonable. Moreover, the Ninth Circuit has
been clear that while district courts may consider that
twenty to forty hours is the range most often requested and
granted in social security cases, “courts cannot
drastically reduce awards simply because the attorney has
requested compensation for more than forty hours or make
reductions with a target number in mind.”
Costa, 690 F.3d at 1136 (holding that it is
“an abuse of discretion to apply a de facto policy
limiting social security claimants to twenty to forty hours
of attorney time in ‘routine' cases.”).
Instead, the court must explain why the amount of time
requested on a particular task is too high. Id.
“Any other approach fails to give deference to the
winning lawyer's professional judgment as required,
” by the Ninth Circuit. Id. The Costa
court also noted that “term ‘routine' is a
bit of a misnomer as social security disability cases are
often highly fact-intensive and require careful review of the
administrative record, including complex medical
evidence.” Id. at 1134 n.1.
than characterizing the case as “routine”,
Defendant has not cited any specific instance of time
expended that it contends was unreasonable. Although the
record in Plaintiff's case was not exceedingly lengthy,
it did consist of over 800 pages. The briefs filed by
Plaintiff, through counsel, provided a detailed and
comprehensive explanation of the procedural history and
Plaintiff's medical history and alleged impairments.
Plaintiff, through counsel, argued that the ALJ erred by: (1)
improperly rejecting the opinion of Plaintiff's treating
doctor; (2) improperly rejecting Plaintiff's symptom
testimony, which required fact-intensive analysis of several
reasons proffered by the ALJ as to why he found Plaintiff not
to be fully credible; and (3) articulating a residual
functional capacity assessment that was not supported by
substantial evidence in the record. Plaintiff, through counsel,
raised issues that required consideration of the interplay of
Plaintiff's alleged impairments, including
polyarthralgia, fibromyalgia, rheumatoid arthritis, and knee
and back problems. Plaintiff's briefs, which are replete
with relevant record cites, succinctly identified applicable
standards and cited case law and other authority pertinent to
Plaintiff's arguments. On the instant record, the Court
declines to find the hours expended by Plaintiff's
counsel unreasonable solely upon Defendant's
characterization of the case as “routine” or that
counsel spent 6.4 hours more than the high point of what is
considered “average” for “routine”
cases. See Costa, 690 F.3d at 1134 n.1, 1136-37.
to Defendant, Plaintiff did not achieve substantial relief
because her primary requested relief was for a remand
awarding benefits, and not a remand for further proceedings
as ordered by the Court. The Ninth Circuit has recognized
that “where a plaintiff has only achieved limited
success, not all hours expended on the litigation are
eligible for inclusion in the lodestar, and even those that
are eligible may be subject to a discretionary
reduction.” Ibrahim, 835 F.3d at 1060 (citing
Hensley, 461 U.S. at 436). In cases where a
plaintiff's success is limited, the Ninth Circuit has
required district courts to follow a two-step inquiry.
Id. (citation omitted). First the court must
determine whether the claims upon which the plaintiff
prevailed are related to the unsuccessful facts or are based
on related legal theories. Id. “Time spent on
unsuccessful claims the court deems related are to be
included in the lodestar, while ‘[h]ours expended on
unrelated, unsuccessful claims should not be included' to
the extent those hours can be ‘isolated.'”
Id. (quoting Webb v. Sloan, 330 F.3d 1158,
1168 (9th Cir. 2003)). Consequently “in
addition to time reasonably spent on successful claims,
potentially recoverable under Hensley are those
hours expended on related but unsuccessful claims as well as
those hours pertaining to unrelated, unsuccessful claims that
cannot be severed cleanly from the
whole.” Id. Second, the “court must
consider whether the plaintiff achieved a level of success
that makes the hours reasonably expended a satisfactory basis
for making a fee award.” Id. at 1060-61
(internal quotation marks and citations omitted). At this
point, the district court's focus should be on the
significance of the overall relief obtained by the plaintiff
in relation to the hours reasonably expended on the
litigation. Id. at 1061 (citations omitted).
“If the court concludes the prevailing party achieved
‘excellent results, ' it may permit a full fee
award-that is, the entirety of those hours reasonably
expended on both the prevailing and unsuccessful but related
claims.” Id. (citations omitted). However,
where the plaintiff has not achieved results warranting a
fully recoverable fee, the district court may apply a
downward adjustment to the lodestar by ‘award[ing] only
that amount of fees that is reasonable in relation to the
results obtained.'” Id. (quoting
Hensley, 461 U.S. at 440).
prevailed on all three arguments (“merits
arguments”) she raised in challenging the ALJ's
decision. In the two-page conclusion of her Opening Brief,
and in about one page of her Reply Brief, Plaintiff
requested that the Court remand the matter for an award of
benefits or, alternatively, remand the matter for further
proceedings. (Doc. 23 at 32-33; Doc. 28 at 2-3, 8).
Determination of the appropriate remedy (i.e.,
whether the case was remanded for either an immediate award
of benefits or, instead, for further proceedings) necessarily
required consideration of the evidence and outcome pertinent
to the three merits arguments. (See Doc. 30 at 24-26
(discussing standard for both types of remand). Consequently,
the claims upon which Plaintiff prevailed are related to her
request for a remand for benefits as well as her alternative
request for remand for further proceedings. Plaintiff
prevailed on all merits arguments and was unsuccessful only
in achieving one alternative remedy. Plaintiff did not spend
an inordinate amount of time or effort arguing for remand for
an immediate award of benefits. On the instant record,
Plaintiff achieved a level of success that makes the hours
reasonably expended. Cf. Penrod v. Apfel, 54
F.Supp.2d 961, 963 (D. Ariz. 1999) (“It is of little,
if any consequence [to the issue of an EAJA fee award] that
Plaintiff preferred summary judgment over remand.”).
review of Plaintiff's Motion for Award of Attorney's
Fees and supporting documentation and Defendant's
objection thereto, the Court finds that the time expended is
reasonable under the circumstances and not excessive.
Therefore, the Court awards Plaintiff attorney's fees in
the amount of $8, 828.98.
light of Ratliff, 560 U.S. 586, the fees awarded
pursuant to this Order shall be made payable to Plaintiff and
are subject to the Treasury Offset Program, 31 U.S.C.