Harding v. Colvin

Filing 24

ORDER granting 20 Motion for Attorney Fees in the amount of $8,801.21.Thisaward shall be payable directly to Plaintiff and is subject to offset to satisfy any preexisting debt that Plaintiff owes the United States pursuant to Astrue v. Ratliff, 560 U.S. 586, 594 (2010). Signed by Senior Judge James A Teilborg on 7/12/2017.(TCA)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Patrick Dooley Harding,

No. CV-16-00419-PHX-JAT

Plaintiff,

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v.

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Commissioner
Administration,

ORDER

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of

Social

Security

Defendant.

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Pending before the Court is Plaintiff Patrick Harding’s Motion for Attorney Fees

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and Costs Under the Equal Access to Justice Act (“Motion”), (Doc. 20). Plaintiff has also

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filed a Memorandum in Support of Motion for Attorney Fees (“Memorandum”),

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(Doc. 21). After reviewing the Commissioner of Social Security Administration’s

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(the “Commissioner’s”) Response, (Doc. 22), and Plaintiff’s Reply, (Doc. 23), the Court

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grants in-part and denies in-part Plaintiff’s Motion.

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I.

Background

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Plaintiff originally filed an application for a period of disability, disability

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insurance benefits, and Supplemental Security Income (“SSI”) before the Social Security

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Administration. (Doc. 21 at 2). Plaintiff’s application was denied by an Administrative

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Law Judge (“ALJ”). (Id.). The Social Security Appeals Council denied Plaintiff’s request

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for review. (Id.). Plaintiff filed an appeal before this Court and counsel filed a complaint

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on February 15, 2016. (Doc. 1). Plaintiff and counsel entered into a fee agreement for

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counsel’s work before the Court. (Doc. 21-3 at 2).

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On November 9, 2016, the Court vacated the Commissioner’s decision and

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remanded Plaintiff’s claim for further proceedings. (Doc. 18). On February 8, 2017

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Plaintiff filed the pending Motion. (Doc. 20).

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II.

Legal Standard

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The United States Court of Appeals for the Ninth Circuit has succinctly stated the

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legal standard for an award of attorneys’ fees under the Equal Access to Justice Act

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(“EAJA”) as follows:

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EAJA provides that a court shall award to a prevailing party
other than the United States fees and other expenses incurred
by that party in any civil action unless the court finds that the
position of the United States was substantially justified or that
special circumstances make an award unjust. It is the
government’s burden to show that its position was
substantially justified. Substantial justification means justified
in substance or in the main—that is, justified to a degree that
could satisfy a reasonable person. Put differently, the
government’s position must have a reasonable basis both in
law and fact. The position of the United States includes both
the government’s litigation position and the underlying
agency action giving rise to the civil action. Thus, if the
government’s underlying position was not substantially
justified, we must award fees and need not address whether
the government’s litigation position was justified.

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Tobeler v. Colvin, 749 F.3d 830, 832 (9th Cir. 2014) (citations, quotation marks, and

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alterations omitted).

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When awarding attorneys’ fees under the EAJA, the court should reimburse the

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prevailing party only for those fees which are reasonably expended by that party’s

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counsel. See 28 U.S.C. § 2412(d)(2)(A) (2012). The prevailing party bears the burden of

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proving the reasonableness of his request through sufficiently detailed accounts of hours

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expended on particular tasks so that the court can evaluate his application. See Hensley v.

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Eckerhart, 461 U.S. 424, 437 (1983); see Neil v. Comm’r of Soc. Sec.,

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495 F. App’x 845, 846 (9th Cir. 2012) (“A fee applicant should maintain billing records

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in a manner that enables a reviewing court to easily identify the hours reasonably

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expended.” (quotation marks omitted)). Generally, if the court reduces a fee application it

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must provide a reason; however, “a district court can impose a reduction of up to 10

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percent—a ‘haircut’—based purely on the exercise of its discretion and without more

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specific explanation.” Costa v. Comm’r of Soc. Sec., 690 F.3d 1132, 1135 (9th Cir. 2012)

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(citing Moreno v. City of Sacramento, 534 F.3d 1106, 1112 (9th Cir. 2008)).

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III.

Analysis

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The Commissioner concedes that her position was not substantially justified.

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(See Doc. 22 at 2 (“As procedural errors by the [ALJ] below rendered the government’s

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position not substantially justified, the Commissioner does not object to the motion for

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EAJA fees on this basis.”)). Because the Commissioner concedes this point, the Court

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next determines the measure of reasonable attorney’s fees to which Plaintiff is entitled

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under the EAJA.

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Plaintiff originally requested $8,291.34 in attorneys’ fees and costs for 30.5 hours

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of attorney time, 19.5 hours of paralegal time, and $470 in costs. (Doc. 21-2 at 2).

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Plaintiff seeks attorneys’ fees at a rate of $190.28 per hour for work in 2015 and $192.68

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per hour for work in 2016. 1 The Commissioner objects to the amount of fees and costs

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requested, and seeks reductions for (1) Plaintiff’s counsels’ pro hac vice fee;

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(2) Plaintiff’s billing of clerical and secretarial tasks; (3) Plaintiff’s quarter-hour

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increment billing; and (4) ten percent of the EAJA award. (Doc. 22 at 3–9); see also

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Moreno, 534 F.3d at 1112. In his Reply, Plaintiff concedes to certain reductions, 2 adds

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fees for litigating this Motion, and updates the requested amount to $8,801.21.

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(Doc. 23 at 2–5). The parties still dispute (1) reductions for three entries that were billed

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as quarter-hours; and (2) a reduction of ten-percent of all of Plaintiff’s fees and costs.

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Plaintiff is entitled to the cost-of-living adjustment to the statutory hourly rate
pursuant to the EAJA and Thangaraja v. Gonzales, 428 F.3d 870, 876–77 (9th Cir. 2005).
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Plaintiff conceded to reductions of $70 in costs for the pro hac vice fee, 1.5
paralegal hours for clerical and secretarial tasks, and 1.5 attorney hours for several
quarter-hour billing entries and entries related to the pro hac vice application.
(Doc. 23 at 3).
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A.

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The Commissioner argues that Plaintiff’s quarter-hour billing increment overstated

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the number of hours worked. In the Response, the Commissioner references eight tasks

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that “could not have reasonably required fifteen minutes to complete.” 3 (Doc. 22 at 5).

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Plaintiff concedes that five of the entries did not take fifteen minutes, but disputes three

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entries that “each took at least fifteen minutes to complete.” (Doc. 23 at 2). In particular,

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Plaintiff contends that reviewing the Court’s Judgment, the Court’s scheduling order, and

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the complaint drafted by a paralegal each took fifteen minutes to complete. (Id.). The

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Court finds that each of the disputed entries reasonably took fifteen minutes to complete.

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See Welch v. Metro. Life Ins. Co., 480 F.3d 942, 948 (9th Cir. 2007) (“The district court

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was in the best position to determine in the first instance whether counsel’s practice of

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billing by the quarter-hour resulted in a request for compensation for hours not

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reasonably expended on the litigation.”).

Reduction for Quarter-Hour Billing

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The Court rejects the Commissioner’s argument that fifteen minutes to review the

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Court’s order was overstated. Here, the Court’s order vacating and remanding the

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decision of the ALJ was approximately 21 pages. (Doc. 18). This entry does not appear

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excessive. The Court will not reduce the attorneys’ fees for reviewing the Court’s order.

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Next, the Court will not reduce the attorneys’ fees for reviewing the scheduling

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order. (Doc. 6). Parties should carefully review such orders to ensure compliance with the

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Court’s rules. The Court therefore will not deduct attorneys’ fees for reviewing the

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scheduling order.

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The Court will not reduce attorneys’ fees for reviewing a complaint drafted by a

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paralegal. Counsel should carefully review such a complaint to ensure the procedural

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history and timeline presented to the Court is accurate. In particular, the complaint

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The Commissioner actually references nine tasks, but duplicates a task in the
Response listed only once in Plaintiff’s time sheet. (Doc. 21-4 at 2). The Response
includes “emailing Plaintiff regarding two attorneys’ pro hac vice applications” and
“reviewing the email from the attorney admissions clerk regarding pro hac vice
applications.” (Doc. 22 at 5). Because Plaintiff did not bill twice for this task, the two
points will be consolidated. The Court will consider the Commissioner as objecting to
eight of the tasks in Plaintiff’s time sheet.
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includes five relevant dates, and specific details regarding the procedural history. The

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Court will not reduce attorneys’ fees for review of the complaint drafted by the paralegal.

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Therefore, the Court agrees with Plaintiff’s reduction of 1.5 attorneys’ hours for items

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that were overstated by quarter-hour billing.

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B.

Reduction of Ten Percent

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The Commissioner seeks a reduction of the EAJA award by ten percent.

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(Doc. 22 at 9). Courts may impose a “reduction, no greater than 10 percent . . . without a

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more specific explanation.” Moreno, 534 F.3d at 1112 (concluding that it could not

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sustain a reduction of 25 percent when the district court could not tell by cursory

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examination which hours were unnecessarily duplicative). Here, the Commissioner does

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not argue that the hours are duplicative and the Court does not find evidence to suggest

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that the hours are duplicative. Because Plaintiff conceded to, and the Court approved of,

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certain reductions in the amount of attorneys’ fees with specific explanation, further

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reduction is not necessary. Therefore, the Court will not reduce the EAJA award by ten

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percent.

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C.

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Plaintiff, in the Reply, seeks an additional 4.25 attorney hours and 2 paralegal

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hours for time spent litigating the pending Motion. (Doc. 23 at 4). Plaintiff claims the

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paralegal spent 2 hours preparing, assembling, and drafting Plaintiff’s Motion and

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Memorandum. (Id.). Plaintiff also claims the attorney spent 2.25 hours reviewing the

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Commissioner’s Response and researching and outlining the Reply, and 2 hours drafting

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the Reply. (Id. at 3–4). Because the Commissioner’s position was not substantially

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justified, Plaintiff is entitled to attorneys’ fees for the pending litigation. See Love v.

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Reilly, 924 F.2d 1492, 1497 (9th Cir. 1991) (“[U]nder the EAJA, the prevailing party is

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automatically entitled to attorney’s fees for any fee litigation once the district court has

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made a determination that the government’s position was not substantially justified.”

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(citing Immigration & Naturalization Serv. v. Jean, 496 U.S. 154, 160–61 (1990))). The

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hours logged in relation with litigating attorneys’ fees appear reasonable and not

Attorneys’ Fees for Litigating the Pending Motion

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duplicative. Therefore, Plaintiff is entitled to an additional 2 paralegal hours and 4.25

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attorney hours, in the amount of $1,018.89. The Court therefore will award Plaintiff

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$8,801.21 in attorneys’ fees under the EAJA.

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IV.

Conclusion

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Based on the foregoing,

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IT IS ORDERED that Plaintiff’s Motion for Attorney Fees and Costs Under the

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Equal Access to Justice Act, (Doc. 20), is GRANTED in the amount of $8,801.21. This

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award shall be payable directly to Plaintiff and is subject to offset to satisfy any

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preexisting debt that Plaintiff owes the United States pursuant to Astrue v. Ratliff,

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560 U.S. 586, 594 (2010).
Dated this 12th day of July, 2017.

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