Alvarez v. Commissioner of Social Security Administration

Filing 41

ORDER granting 34 Motion for Attorney Fees. See document for complete details. Signed by Judge Douglas L Rayes on 11/18/2021. (RMV)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Diana Yvonne Alvarez,
Plaintiff,

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ORDER

v.

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No. CV-20-00264-PHX-DLR

Commissioner of Social Security
Administration,

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Defendant.

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Before the Court is Plaintiff’s motion for attorney fees as authorized by the Equal

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Access to Justice Act (“EAJA”), which is fully briefed. (Docs. 34, 35, 36, 40.) Plaintiff’s

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motion is granted, as explained below.

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Pursuant to the EAJA, the Court shall award fees and costs to the prevailing party

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in a Social Security Appeal unless the position of the United States was substantially

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justified, or special circumstances make an award unjust. 28 U.S.C. § 2412(d)(1)(A). The

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plaintiff bears the burden of proving that the fees sought are reasonable. Crawford v.

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Astrue, 586 F.3d 1142, 1148 (9th Cir. 2009). Where fees are not shown to be reasonable

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or “documentation of hours is inadequate, the district court may reduce the award.”

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Hensley v. Eckerhart, 461 U.S. at 424, 433 (1983).

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Plaintiff seeks $9,702.57 for 46.7 hours of work, a rate just over $200 per hour.

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(Doc. 35-3; Doc 40 at 13.) It is undisputed that Plaintiff is entitled to fees and costs under

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the EAJA (Doc. 35-3 at 1; Doc. 36 at 1), but the Commissioner disputes the reasonableness

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of Plaintiff’s proposed fee and whether Plaintiff or Plaintiff’s counsel should receive the

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award (Doc. 36 at 1).

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The Commissioner marshals six arguments against the reasonableness of the

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requested fee. First, the Commissioner argues that Plaintiff drafted an unreasonably

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lengthy and detailed complaint—taking 5.3 hours—and instead reasonably should have

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expended 3 hours. (Doc. 36 at 8.) To be sure, the complaint is lengthier and more involved

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than the usual complaints filed in Social Security cases. This Court, however, recognizes

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that more-developed complaints can create downstream efficiencies, potentially shortening

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the time required to draft later briefs and “persuad[ing] the Commissioner that [a] case

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should be remanded before the case is fully briefed.” Garcia v. Comm’r of Soc. Sec.

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Admin., No. CIV 18-504-TUC-LAB, 2019 WL 4673335, at *2 (D. Ariz. Sept. 25, 2019).

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Rather than challenge this efficiency theory, the Commissioner argues that the time

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spent drafting the complaint was excessive because it did not result in downstream

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efficiencies when two attorneys—rather than one—drafted briefs. (Doc. 36 at 8.) That

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argument misses its mark, however, because it addresses the reasonableness of the time

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spent drafting the opening brief, not whether a more-developed complaint would allow

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counsel to draft a brief more efficiently than if he had drafted a minimally developed

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complaint.

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The Commissioner attacks the remand argument by claiming that Plaintiff’s counsel

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routinely opposes motions for voluntary remand. (Doc. 36 at 8.) But Plaintiff’s counsel

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avows that the decision to oppose remand is not up to him but instead “up to the

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administrative attorney who would have to represent the claimant before the agency.”

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(Doc. 40 at 10.) What’s more, counsel has stipulated to remand many times before. (Doc.

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40 at 9 n.9 (listing stipulations).) The Court finds that the 5.3 hours spent drafting the

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complaint was reasonable.

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Second, the Commissioner challenges the time spent drafting the opening brief (25

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hours) because of its boilerplate language and the redundancy of having one attorney draft

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the brief (15 hours) and the other attorney edit it (10 hours). (Doc. 36 at 12.) A reasonable

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time, the Commissioner posits, is 18 hours. (Doc. 36 at 12.)

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In light of the more-developed complaint, the reasonable time for drafting briefs

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contracts. The opening brief’s boilerplate language and non-boilerplate language should

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not have taken 25 hours to compile, draft, and edit. See Thomas v. Comm’r of Soc. Sec.

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Admin., CV-18-04230-JZB, Doc. 32 at 4 (D. Ariz. Aug. 7, 2020) (reducing time spent to

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draft a brief after accounting for time efficiencies created by re-using language);

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Chanthavong v. Astrue, No. 1:09-CV-1561 SKO, 2011 WL 6751930, at *10 (E.D. Cal.

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Dec. 23, 2011) (noting that an experienced attorney might reasonably expend 2 hours

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editing another attorney’s brief).

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reasonable, and the Court reduces the time by 4 hours to 21 hours.

Twenty-five hours for this opening brief is not

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This, however, should not be construed to devalue having an attorney edit another

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attorney’s work. Even the most gifted writers see improvements to their work product after

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having another person proofread their work. Garner on Language and Writing 416

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(American Bar Association 2009). The Court only notes that it was not reasonable in this

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case for experienced counsel to expend 10 hours editing a brief that used so much language

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from the complaint and elsewhere.

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Third, Commissioner charges the 8 hours spent drafting the 16-page reply brief

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(Doc. 31) as unreasonable because it “echo[es] many of the arguments made earlier.” (Doc.

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36 at 12.) But the reply brief does not ape the opening brief; it largely addresses the

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arguments levied in the Commissioner’s answering brief, covering ground not trod in the

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opening brief. The Court finds that 8 hours is reasonable.

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Fourth, the Commissioner asserts that it is unreasonable to bill for time spent

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reviewing already-filed documents.

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documents for error has value. Although some attorneys might choose to expend their

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reasonable review time before filing, some allot a portion of that time for after filing,

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relying on a notice of errata to make their changes. See Murrieta v. Comm’r of Soc. Sec.

(Doc. 36 at 12.)

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As stated above, reviewing

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Admin., No. CV-19-04865-PHX-DWL, 2021 WL 1208980, at *4 (D. Ariz. Mar. 31, 2021).

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The Court finds that the 1.5 hours of review time is reasonable.

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Fifth, the Commissioner argues that several emails are not compensable because

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they are overly vague. (Doc. 36 at 12.) A plaintiff’s attorney “is not required to record in

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great detail how each minute of his time was expended,” rather, he “can meet his burden—

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although just barely—by simply listing his hours and identifying the general subject matter

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of his time expenditures.” Fischer v. SJB-P.D. Inc., 214 F.3d 1115, 1121 (9th Cir. 2000)

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(cleaned up). Plaintiff’s attorney did so here, with the exception of one email on January

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24, 2020, where only the recipient and not the general subject matter is documented. See

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Murrieta, 2021 WL 1208980, at *4 (addressing the same argument against the same

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attorney). The Court therefore reduces the fee award by the 0.1 hours expended on that

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email.

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Sixth, the Commissioner asks the Court to disallow fees for any reply brief. But

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just as the Commissioner has every right to oppose these fees in a response brief, so too

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does Plaintiff’s counsel have every right to submit a reply. The lodestar is reasonableness:

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would a reasonable attorney have expended those hours on a reply brief? The Court finds

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that the 3 hours spent drafting a reply brief is reasonable.

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Finally, the Commissioner argues that the fee award should be made out to Plaintiff

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as the “prevailing party” under 28 U.S.C. § 2412(d)(1)(A), not Plaintiff’s counsel. (Doc.

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36 at 15.) The Court agrees. See Astrue v. Ratliff, 560 U.S. 586, 589 (2010) (“We hold

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that a § 2412(d) fees award is payable to the litigant. . . .”).

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In sum, the Court reduces the time spent on drafting the opening brief by 4 hours

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and subtracts the 0.1 hours of emailing that is inadequately documented. The Court thus

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finds that 43.6 hours is compensable, amounting to $9,058.45.

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IT IS ORDERED that Plaintiff’s motion for attorneys’ fees (Doc. 34) is

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GRANTED. Plaintiff is awarded $9,058.45 in attorney fees under the EAJA. This award

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shall be payable to Plaintiff and is subject to offset to satisfy any pre-existing debt that

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Plaintiff owes the United States pursuant to Astrue v. Ratliff, 560 U.S. 586, 594 (2010).

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Dated this 18th day of November, 2021.

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Douglas L. Rayes
United States District Judge

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