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Barker v. Commissioner of Social Security Administration

United States District Court, D. Arizona

December 18, 2019

Bradley Barker, Plaintiff,
Commissioner of Social Security Administration, Defendant.



         Pending before the Court is Plaintiff's motion for attorneys' fees under the Equal Access to Justice Act (“EAJA”). (Doc. 21.)

         “The 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).

         Having 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 Cir. 2012).

         Plaintiff's counsel charged the statutory maximum rates, and the reasonableness of the hourly rates is not in dispute.[1]

         The 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.

         Instead 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 EAJA.”).

         Plaintiff 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.[2] (Doc. 22 at 3-4.)

         A. Clerical Tasks

         Time 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.”).

         The Commissioner argues the following time entries include clerical tasks:


0.4 hours

“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)).”


0.2 hours

“Preparation of Civil Cover Sheet (Dkt. 1-1).”


0.25 hours

“Review of Magistrate Judge Assignment Notice (Dkt. 3) and Scheduling Order (Dkt. 4).”


0.2 hours

“Review of Summons Issued.”


0.85 hours

“Preparation and mailing of service packets to Defendant (Summons Issued, Civil Cover Sheet, Magistrate Judge Assignment Notice, and Complaint).”


0.2 hours

“Review of Notice of Appearance (Dkt. 7).”


0.3 hours

“Review of Minute Order reassigning case to Judge Lanza (Dkt. 10).”

         (Doc. 22 at 3; Doc. 21-2 at 1).

         The 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 ...

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