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Esquer v. Commissioner of Social Security

United States District Court, D. Arizona

April 28, 2017

Maribel Esquer, Plaintiff,
v.
Commissioner of Social Security, Defendant.

          ORDER

          Bernardo P. Velasco United States Magistrate Judge.

         This action commenced when Plaintiff sought judicial review of the Commissioner's decision denying her applications for disability insurance benefits and supplemental security income. After Plaintiff filed her Opening Brief, the parties submitted a Stipulated Motion for Remand (Doc. 20), which the Court granted.[1] (Doc. 21; see also Judgment (Doc. 22)). Now pending before the Court is Plaintiff's Motion for Attorney Fees pursuant to the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d) (Doc. 23; see also Supporting Memorandum (Doc. 24)). Defendant has filed a Response (Doc. 26) and Plaintiff has filed a Reply (Doc. 28). For the following reasons, the Court grants in part and denies in part Plaintiff's request for attorney fees.

         I. Discussion

         The 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 Response at 4). Defendant also concedes that the government's position was not substantially justified. (Id. at 4). However, Defendant objects to the reasonableness of the amount of fees requested. (Id. at 4-6).

         Attorney's fees and expenses awarded under the EAJA must be reasonable. See 28 U.S.C. § 2412(d)(2)(A); see also Sorenson v. Mink, 239 F.3d 1140, 1145 (9th Cir. 2001) (citing Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)). 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 (9th Cir. 2008)). However, the district court “should exclude hours ‘that are excessive, redundant, or otherwise unnecessary, ” McCown v. City of Fontana, 565 F.3d 1097, 1102 (9th Cir. 2009) (quoting Hensley, 461 U.S. at 434). 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).

         When 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). “‘[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 Cir. 1995)). The court may not reduce requested fees in social security disability appeals without providing relatively specific reasons. Costa 690 F.3d at 1136-37.

         Plaintiff requests $9, 099.18 for 47.82 hours of work by her attorney, John Gravina, billed at a rate of $190.28.[2] (Doc. 23 at 1; see also Affidavit, Exh. 1 (Doc. 25-1)). Defendant objects to the fee amount sought, arguing that it is unreasonable and should be reduced because counsel billed for: work not performed at the district court level; clerical tasks in increments over 0.1; and duplicative tasks. Defendant also argues that Plaintiff's fee request is unreasonable because the case was not overly complex.[3]

         This action was filed with the District Court on September 14, 2015. (Doc. 1). Defendant objects to Plaintiff's request for fees for one hour spent on March 26, 2014, reviewing the “file in preparation for Appeal; prepar[ing] appeal for the Appeals Council; telephone conference with client; review draft of Appeal.”[4] (Summary of Billing (Doc. 25-1 at 7)). Defendant also objects to other time, totaling 2.5 hours, billed prior to the filing of this action. Defendant argues that these fees are not associated with the district court action.

         Defendant is correct that the EAJA “generally does not allow for the award of fees for administrative proceedings.” Western Watersheds Project v. U.S. Dep't of the Interior, 677 F.3d 922, 926 (9th Cir. 2012); see also Berman v. Colvin, 2014 WL 4809886, at *3 (D. Nev. Sept. 29, 2014) (noting same). A “narrow exception” to this rule applies to the extent that “fees for administrative proceedings can only be awarded under § 2412(d)(1)(A) if the district court ordered the further proceedings, and the district court action remained pending until the conclusion of the administrative proceedings.” Western Watersheds Project, 677 F.3d at 926-27. Review of the record, including the Summary of Billing, supports the conclusion that the fees sought for work on March 26, 2014 related to work while the action was still pending at the administrative level. Because the EAJA does not permit compensation for work performed before an administrative agency prior to initiating a civil action in federal court, Plaintiff is not entitled to fees for one hour incurred on March 26, 2014 and the fee request will be reduced accordingly.

         With regard to the remaining 2.5 hours, which were billed in 2015 but before this action was filed (See Summary of Billing (Doc. 25-1 at 9)), Plaintiff concedes that the objection is “somewhat valid[]” and the amount of time “could be reduced .75 for working on the second application.” (Reply at 2). The remaining time, which is block billed[5], covers from July to early September 2015, and includes: two different entries for reviewing the Appeals Council decision; telephone and/or office conferences with Plaintiff which included discussion of “[a]ppeal and new file”; calendaring dates; and making notes to the file. (Summary of Billing (Doc. 25-1 at 9)). Mr. Gravina asserts that this “time was necessary to adequately advise Plaintiff of the proceedings due to the nature and length of the professional relationship with the client.” (Reply at 2).

         Although conferring with a client in anticipation of filing a federal court action can be viewed as reasonable, the Billing Summary reflects that the conferences also addressed filing a second disability application and the records do not suggest how much time was devoted to that topic. As such, Plaintiff has failed to carry her burden of establishing her entitlement to the full amount of fees sought for this time period. See Welch, 480 F.3d at 948. Consequently, the remaining time sought between July 21, 2015 and September 2, 2015 will be reduced to 0.75.

         Defendant also objects to the billing of “large increments for seemingly simple and/or clerical tasks and . . . [billing] more than once for the same task.” (Defendant's Response at 6). Defendant points out that Plaintiff's counsel “reviewed the in forma pauperis paperwork five different times. He spent one hour and a half to review the complaint, which is pro forma in Social Security appeals. He billed one-half hour each to review straight forward documents such as the scheduling order, Magistrate consent form, and Judge's consent form. He billed for a deficiency in his own filing. He billed for tasks related to the Magistrate consent form five different times, including reviewing it twice. He spent over one-third of an hour reviewing [defense counsel's] notice of appearance. In all, he spent 10.33 hours working on this appeal before beginning any substantive work on the brief.” (Response at 6-7 (citations to Summary of Billing omitted)).

         The Summary of Billing reflects that Plaintiff's counsel spent one hour: reviewing the one-and-one-half page Complaint in addition to the cover sheet and Motion to Proceed in Forma Pauperis, which are essentially form documents with some case-specific information added; reviewing the summons, another form document; filing the documents; and making notes to his file. (See Summary of Billing (Doc. 25-1 at 10)). He then spent another half-hour reviewing the e-filing of the documents, case assignment information, printing out that information and calendaring deadlines. (Id.).

         The Ninth Circuit has recognized that “‘purely clerical or secretarial tasks should not be billed at a paralegal [or lawyer's] rate regardless of who performs them.'” Davis v. City of San Francisco,976 F.2d 1536, 1543 (9th Cir. 1992), vacated in part on other grounds,984 F.2d 345 (9th Cir. 1993) (bracketed text in original) (quoting Missouri v. Jenkins, 491 U.S. 274, 288 n. 10 1989)). See also Id. (“time spent on clerical matters should not have been included in the attorneys' fee award….”); Hoefle v. Colvin, 2014 WL 5217041 (E.D. Cal. Oct. 14, 2014) (“time spent to e-file documents is routinely found to be clerical work that is non-compensable under the EAJA.”). Because filing documents is clerical in nature, counsel is not entitled to fees for that task and his hours will be reduced accordingly. See Jenkins, 491 U.S. at 288; Davis, 976 F.2d at 1543. Because of the block billing, the record does not reflect precisely how much time was spent filing the documents in each instance. Mr. Gravina's time will be reduced from 1.0 to 0.70 for filing the Complaint, Motion to Proceed in Forma Pauperis, cover sheet, and ...


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