Castillo v. Astrue

Filing 44

ORDER granting pla's 34 Motion for Attorney Fees and costs in the total amount of $20,227.54. Signed by Judge Frederick J Martone on 8/12/2009. (LAD)

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NOT FOR PUBLICATION IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

) ) ) Plaintiff, ) ) vs. ) ) Michael J. Astrue, Commissioner of Social) ) Security Administration, ) ) Defendant. ) ) Deborah D. Castillo,

No. CV-05-4233-PHX-FJM ORDER

The court has before it plaintiff's application for attorney fees pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412 ("EAJA") (doc. 34), defendant's response (doc. 42), and plaintiff's reply (doc. 43). On March 20, 2007, we held that substantial evidence in the record supported the ALJ's decision that plaintiff is not disabled and therefore not eligible for benefits under Title XVI of the Social Security Act. On appeal, the United States Court of Appeals for the Ninth Circuit reversed and remanded for further administrative proceedings. Plaintiff now seeks attorney's fees and costs in the total amount of $20,693.86, which includes 119.9 hours of attorney time. A prevailing party in an action against the United States is entitled to an award of attorney's fees and costs under the EAJA unless the government's position was "substantially

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justified." 28 U.S.C. § 2412(d)(1)(A). The Commissioner does not contest the propriety of a fee award or the claimed hourly rate. Response at 1 n.1. Instead, he argues that the number of hours claimed is unreasonable. A prevailing party is only entitled to reasonable fees. Sorenson v. Mink, 239 F.3d 1140, 1145 (9th Cir. 2001). The Commissioner contends that plaintiff's fee request improperly includes 2.8 hours of administrative or clerical tasks that are not recoverable under the EAJA. See Missouri v. Jenkins, 491 U.S. 274, 288 n.10, 109 S. Ct. 2463, 2472 n.10 (1989) ("purely clerical or secretarial tasks" are not recoverable). Plaintiff's counsel billed for time spent preparing proofs of service, calendaring due dates, and dictating instructions on printing and binding appellate briefs. The billed time also includes obtaining multiple extensions of deadlines­a far too common practice. While we agree with counsel that calendaring deadlines and binding briefs are necessary tasks in the course of litigation, costs associated with such clerical duties are typically considered overhead expenses reflected in a lawyer's hourly rate and are not properly reimbursable. Therefore, we reduce plaintiff's fee request by 2.8 hours, or $466.32. The Commissioner also objects to the 17.5 hours spent drafting the motion for summary judgment and the 54.8 hours spent preparing the Ninth Circuit briefs. He argues that the issues presented in this case are "routine," and that, because plaintiff's counsel performed the work at every stage of the administrative and judicial process, his increased efficiency requires a time reduction. Response at 4. The Commissioner suggests that a 25 hour reduction is appropriate. We disagree that this was merely a routine matter. While certain broad issues are commonly presented in Social Security cases (i.e., weight accorded medical source opinion or subjective complaint testimony), analysis of these legal issues is driven by fact-intensive application of an extensive administrative record. Moreover, given the complexity of the issues presented in this case, and the fact that this case has spanned multiple levels of appeals over the course of three years, we do not consider the claimed hours unreasonable.

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Therefore, IT IS ORDERED GRANTING plaintiff's application for attorney's fees and costs in the total amount of $20,227.54 (doc. 34). DATED this 12th day of August, 2009.

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