United States District Court, D. Arizona
DOMINIC W, LANZA UNITED STATES DISTRICT JUDGE.
before the Court is Plaintiff's motion for attorneys'
fees under the Equal Access to Justice Act
(“EAJA”). (Doc. 21.)
Equal Access to Justice Act (EAJA) instructs that this court
‘shall' grant attorneys['] fees to a prevailing
plaintiff ‘unless' the government meets its burden
to demonstrate that both its litigation position and the
agency decision on review were ‘substantially
justified.'” Campbell v. Astrue, 736 F.3d
867, 868 (9th Cir. 2013) (quoting 28 U.S.C. §
2412(d)(1)(a)). Here, the government has chosen not to argue
that its position was substantially justified (Doc. 22), so
the Court must grant attorneys' fees. See, e.g.,
Robinson v. Berryhill, 2018 WL 7140957, *2 (9th Cir.
2018) (“Pursuant to the parties' stipulation and
the [EAJA], 24 U.S.C. § 2412(d), attorney's fees . .
. and costs . . . are awarded.”); Wheatley v.
Berryhill, 2018 WL 6579351, *1 (9th Cir. 2018) (same).
determined that Plaintiff is eligible for EAJA fees, the
Court must determine what fee is reasonable. Comm'r,
I.N.S. v. Jean, 496 U.S. 154, 161 (1990). “The
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.”
Hensley v. Eckerhart, 461 U.S. 424, 433 (1983);
see also Jean, 496 U.S. at 161 (“[O]nce a
private litigant has met the multiple conditions for
eligibility for EAJA fees, the district court's task of
determining what fee is reasonable is essentially the same as
that described in Hensley.”). This is
“now called the ‘lodestar' method” of
determining the reasonableness of fees. Costa v.
Comm'r of Soc. Sec. Admin., 690 F.3d 1132, 1135 (9th
counsel charged the statutory maximum rates, and the
reasonableness of the hourly rates is not in
parties dispute whether the amount of time Plaintiff's
counsel billed was reasonable. As a preliminary matter, the
reasonableness of the number of hours spent is necessarily a
case-specific determination, and it is improper to generalize
from other cases and impose “a de facto cap” on
the number of hours compensable under the EAJA.
Costa, 690 F.3d at 1134. The Ninth Circuit has
emphasized that dubbing any Social Security case
“routine” would be “a misnomer”
because the cases “are often highly fact-intensive and
require careful review of the administrative record,
including complex medical evidence, ” such that two
cases involving the same issues might nevertheless require
different amounts of work. Id. at 1134 n.1. Courts
generally should defer to “the winning lawyer's
professional judgment, ” and if “the amount of
time requested for a particular task is too high, ” the
Court must explain why. Id. at 1136. Thus, to the
extent the Commissioner argues the Court should reduce
Plaintiff's requested fees because (1) the “45.5
hours expended on this case . . . is above the high end of
the normal range, ” (2) “[a]t 1091 pages, the
record in this case was not unusually large, ” and (3)
“the routine issues are not complex such that they
might warrant a higher fee” (Doc. 22 at 2), the Court
rejects those arguments as foreclosed by Costa.
of generalizing, the Court will consider the reasonableness
of the hours billed in this case by examining the timesheets
and reviewing the appropriateness of the kinds of tasks that
were billed and the amount of time spent on them. Heggem
v. Colvin, 2016 WL 4194527, *2 (D. Ariz. 2016)
(“[T]he Court ‘combed through the record' as
is required for all fee applications brought pursuant to the
billed 23.7 hours for this case in 2018 and 21.8 hours in
2019. (Doc. 21-2.) Multiplying those hours by the statutory
rates and adding the two sums, the total amount of
attorneys' fees sought is $9, 230.57. (Id.)
Adding $400 for costs, the grand total sought is $9, 630.57.
(Doc. 23 at 5.) The Commissioner contests 2.4 hours of the
time billed in 2018 as clerical and 6 hours of the time
billed in 2019 as excessive, such that the Commissioner
believes an award of $7, 521.23 is appropriate. (Doc. 22 at 3-4.)
billed for clerical tasks should not be included in an EAJA
award, because such tasks should be subsumed in firm overhead
rather than billed. Nadarajah v. Holder, 569 F.3d
906, 921 (9th Cir. 2009). This is true regardless of who does
the clerical work- a legal assistant, paralegal, or attorney.
Missouri v. Jenkins, 491 U.S. 274, 288 n.10 (1989)
(non-legal work “is not enhanced just because a lawyer
does it”); Neil v. Comm'r Soc. Sec.
Admin., 495 Fed. App'x. 845, 847 (9th Cir. 2012)
(affirming reduction of fees for “purely clerical tasks
such as filing documents and preparing and serving
summons” performed by an attorney); McAnally v.
Saul, 2019 WL 6179217, *2 (D. Alaska 2019) (deducting
time billed by an attorney for clerical tasks); Brandt v.
Astrue, 2009 WL 1727472, *4 (D. Or. 2009) (same);
Gough v. Apfel, 133 F.Supp.2d 878, 881 (W.D. Va.
2001) (“Purely clerical activities, regardless of who
performs them, are considered overhead and are not
compensable as EAJA attorney fees.”).
Commissioner argues the following time entries include
“Preparation of initial district court
documents (Compliant [sic] and Verification (Dkt.
1), Fee Agreement (Dkt. 2-1), Assignment of EAJA
Fee (Dkt. 2) and Summons (Dkt. 5)).”
“Preparation of Civil Cover Sheet (Dkt.
“Review of Magistrate Judge Assignment Notice
(Dkt. 3) and Scheduling Order (Dkt. 4).”
“Review of Summons Issued.”
“Preparation and mailing of service packets
to Defendant (Summons Issued, Civil Cover Sheet,
Magistrate Judge Assignment Notice, and
“Review of Notice of Appearance (Dkt.
“Review of Minute Order reassigning case to
Judge Lanza (Dkt. 10).”
22 at 3; Doc. 21-2 at 1).
Court finds that the block-billed time entry on June 11, 2018
for “preparation of initial district court
documents” includes only clerical tasks. Although
preparing a complaint ordinarily involves legal work, in this
case it did not. The complaint is a boilerplate 20-line
document that Plaintiff's counsel has used in previous
cases, such that filling in Plaintiff's name, the last
four digits of his Social Security number, and his city was
all that needed to be done. Cf., e.g., Confino
v. Commissioner of Social Security Administration,
4:17-cv-00603-BGM, Doc. 1 (complaint filed by Plaintiff's
counsel in previous case). The other documents prepared on
June 11, 2018 were also boilerplate documents in which only a
few bits of information needed to be plugged in. Preparing a
summons is usually a clerical task, Neil, 495
Fed.Appx. at 847, and in this case, preparing the ...