United States District Court, D. Arizona
Janice D. Songer, Plaintiff,
v.
Commissioner of Social Security Administration, Defendant.
ORDER
Dominic W. Lanza United Slates District Judge.
Pending
before the Court is Plaintiff's Motion for Award of
Attorney's Fees Pursuant to the Equal Access to Justice
Act (“EAJA”). (Doc. 23.) For the following
reasons, the Court will grant the motion and award $8, 987 in
fees, plus $400 in filing costs, for a total of $9, 387.
BACKGROUND
On
August 21, 2018, Plaintiff filed the complaint. (Doc. 1.)
On
October 26, 2018, the day on which the answer was due,
Defendant filed a motion for an extension of time to answer
(Doc. 8), and the following day, the Court granted the motion
and extended the deadline to November 26, 2018 (Doc. 10). On
November 26, 2018, Defendant filed an answer.
On
January 24, 2019, Plaintiff filed her opening brief. (Doc.
14.) The opening brief states that on July 2, 2013,
Plaintiff, a former police officer, was diagnosed with
multiple sclerosis resulting in abnormality of gait, malaise
and fatigue, memory loss, and visual disturbance.
(Id. at 2-3.) She was also treated for restless leg
syndrome, occasional falls, and unsteady balance, as well as
lower back pain and various foot conditions that caused
difficulty walking. (Id. at 3-9.) In a
“Multiple Sclerosis Impairment Questionnaire, ”
dated July 1, 2014, Kathleen A. LuPone, APRN, reported that
Plaintiff “was incapable of even low stress
work.” (Id. at 4.) In a “Disability
Impairment Questionnaire, ” dated February 20, 2015,
Nandria Keole, M.D., reported that Plaintiff could sit for
only two hours and stand or walk for only two hours during an
8-hour workday, would frequently experience symptoms severe
enough to interfere with attention and concentration, would
need unscheduled 15-minute breaks every 1-2 hours, and would
miss work 2 to 3 times per month. (Id. at 9.) The
administrative law judge (“ALJ”) found that
Plaintiff had the medically determinable impairments of
degenerative disc disease, multiple sclerosis, and essential
hypertension but did not have a severe impairment or
combination of impairments from her alleged onset date of
September 1, 2012 through the expiration of her Title II
insured status on December 31, 2014. (Id. at 10.)
Plaintiff argued that “the ALJ applied an incorrect
severity standard” and that the record “does not
provide substantial evidence to support the ALJ's finding
that [Plaintiff's] medically determinable impairments
were no more than ‘a slight abnormality' that had
‘no more than a minimal effect' on her ability to
work.” (Id. at 12.) Plaintiff further argued
that the ALJ erred by failing to even mention the opinion of
treating physician Dr. Keole. (Id. at 21-23.)
Defendant's
response brief was due on February 25, 2019. Defendant missed
this deadline.
On
February 27, 2019, Defendant filed a motion for extension of
time to file a response brief. (Doc. 15.) Defendant's
motion itself did not indicate that the deadline had lapsed.
In a separately-filed declaration, Defendant's attorney
acknowledged the lapsed deadline, declared that he had missed
the deadline “[d]ue to a calendaring error, ” and
apologized to the Court for the error. (Doc. 16 ¶ 2.)
Both the motion and the declaration indicated that Plaintiff
did not oppose the untimely request for an extension of time.
(Doc. 15 at 1; Doc. 16 ¶ 4.) Defendant's deadline
was extended to March 25, 2019.
On
March 25, 2019, the parties filed a stipulation agreeing that
the case should be reversed and remanded. (Doc. 18 at 1.) The
parties further stipulated that “[u]pon proper
presentation, this Court will consider Plaintiff's
application for costs and attorneys' fees under 28 U.S.C.
§ 2412(d).” (Id. at 2.) The following
day, the Court granted the stipulation (Doc. 19) and the
Clerk of Court entered judgment (Doc. 20).
Plaintiff's
application for costs and fees was due on June 24, 2019.
(Doc. 24 at 3.) On June 27, three days after the deadline
elapsed, Plaintiff filed a motion for extension of time.
(Doc. 21.) Plaintiff attached her attorney's declaration,
which stated the deadline had been missed due to a
calendaring error. (Doc. 21-2 ¶ 5.) Plaintiff's
attorney further declared that “Plaintiff, in early
June, began her attempts to communicate with Defendant
regarding the possibility of filing an unopposed EAJA motion
but has not received a response to any of her attempts to
communicate.” (Id. ¶ 7.) Plaintiff's
attorney also declared that “Plaintiff has also
attempted to contact Defendant regarding the instant motion
but has not received a response.” (Id. ¶
8.) Finally, Plaintiff requested an extension of time to July
12, 2019.
On June
27, 2019, the Court issued an order applying the
excusable-neglect factors outlined in Pioneer Inv. Servs.
Co. v. Brunswick Assocs. Ltd. P'ship, 507 U.S. 380,
365 (1993), and determining that (1) the three-day delay was
“minimal, ” (2) there was “little to no
danger of prejudice to Defendant, ” (3)
“calendaring errors can constitute excusable neglect,
” and (4) there was “no evidence of bad
faith.” (Doc. 22 at 2.) The Court therefore granted the
motion and extended Plaintiff's deadline for filing her
fee motion to July 12, 2019. (Id.)
On July
8, 2019-four days before the July 12 deadline-Plaintiff filed
the pending EAJA attorneys' fees motion. (Doc. 23.)
Plaintiff sought “an award of $8250 in EAJA fees
reflecting 40 hours of work by the attorneys in this case and
costs in the amount of $400 for the federal court filing fees
. . . .” (Id. at 2.) Plaintiff's
supporting memorandum asserted that “Plaintiff's
counsel has expended in excess of 40 hours in presenting this
matter” (Doc. 23-2 at 3) but that Plaintiff's
counsel seeks fees for only 40 hours of work (id. at
3 n.1). Plaintiff attached an affidavit from her attorney
averring that 45 hours of attorney time and 11 hours of
paralegal time were spent on this matter, but the paralegal
time and 5 hours of the attorney time were “not being
billed in furtherance of exercising billing judgment.”
(Doc. 23-3 ¶¶ 16-17.) Plaintiff's counsel
stated that the adjusted maximum rate in 2019 was $206.25 per
hour billed. (Doc. 23-3 ¶ 12.)
Plaintiff
also attached a statement of consultation that stated:
[T]he undersigned sent an initial email to defense counsel of
record . . . on June 10, 2019, attaching a draft itemization
of time and an offer of settlement of fees with in invitation
to discuss resolving any issues in this matter. No. response
was received and the undersigned emailed [defense counsel] a
second time on June 17, 2019. Emails were sent again to
[defense counsel] on June 26th, and July 5th and no response
was received. The undersigned also called [defense counsel]
on July 1st and left a detailed voicemail explaining that
multiple emails were sent to no avail and that ...