Eric Hilliard Harwell v. Commissioner of Social Security

Filing 26

ORDER by Magistrate Judge Kenly Kiya Kato: granting in part and denying in part 23 MOTION for Attorney Fees. Defendant is directed to pay Counsel the sum of $6,327.00, subject to Plaintiff's outstanding federal debts. (dts)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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Plaintiff,

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v.

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Case No. CV 16-8151-KK

ERIC HILLIARD HARWELL,

ORDER GRANTING IN PART
MOTION FOR ATTORNEY FEES
UNDER THE EQUAL ACCESS TO
JUSTICE ACT

NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.

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I.

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INTRODUCTION
Plaintiff Eric Hilliard Harwell’s (“Plaintiff’s”) counsel, Jane Cervantes of

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the Law Offices of Jane Cervantes (“Counsel”), filed a Motion for Attorney’s Fees

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Under the Equal Access to Justice Act (“Motion”). The Motion seeks an award of

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$7,201.00 for representing Plaintiff in an action to obtain Title II Disability

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Insurance Benefits (“DIB”) and Title XVI Supplemental Security Income

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(“SSI”). For the reasons stated below, the Court GRANTS IN PART the Motion.

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II.

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RELEVANT BACKGROUND
On November 1, 2016, Plaintiff filed the complaint in this action. See ECF

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Docket No. (“Dkt.”) 1, Compl. Plaintiff alleged Defendant improperly denied

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Plaintiff’s application for benefits. Id.

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On July 26, 2017, the parties filed a Joint Stipulation (“JS”). Dkt. 20, JS.

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On August 31, 2017, the Court found Defendant erred in denying Plaintiff

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benefits and entered Judgment reversing and remanding the case to Defendant for

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further administrative proceedings. Dkt. 22, Judgment.
On November 29, 2017, Counsel filed the instant Motion Under the Equal

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Access to Justice Act seeking the amount of $7,201.00 for representing Plaintiff in

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the underlying proceedings before the Court. Dkt. 23. According to Counsel, 37.9

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hours were expended on Plaintiff’s case. Dkt. 23-2, Ex A. Counsel seeks

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compensation pursuant to a contingency fee agreement assigning Plaintiff’s rights

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in any fees payable under the EAJA to Counsel. Dkt. 23-3, Ex. B, Contingency Fee

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Agreement.

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On December 14, 2017, Defendant filed an Opposition to the Motion stating

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the hours Counsel seeks are unreasonable “given [Counsel]’s scant reliance on the

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record, his extensive reliance on boilerplate from documents previously filed by

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Plaintiff’s attorney, and the limited analysis contained in the briefing.” Dkt. 24,

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Opp. at 3. On December 22, 2017, Counsel filed a Reply. Dkt. 25. Thus, the

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Court deems this matter submitted.

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III.

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DISCUSSION

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A.

The Equal Access to Justice Act Entitles Plaintiff to Fees

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1.

Applicable Law

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The Equal Access to Justice Act (“EAJA”) requires a court to “award to a

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prevailing party other than the United States fees and other expenses . . . incurred
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by that party in any civil action . . . unless the court finds that the position of the

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United States was substantially justified or that special circumstances make an

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award unjust.” 28 U.S.C. § 2412(d)(1)(A).

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Courts have the discretion to evaluate the reasonableness of the number of

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hours claimed by a prevailing party. Sorenson v. Mink, 239 F.3d 1140, 1145 (9th

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Cir. 2001); Gates v. Deukmejian, 987 F.2d 1392, 1398 (9th Cir. 1992). Courts can

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exclude hours that were not “reasonably expended” or which are “excessive,

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redundant or otherwise unnecessary.” Hensley v. Eckerhart, 461 U.S. 424, 434,

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103 S. Ct. 1933, 76 L. Ed. 2d 40 (1983); see also Commissioner, INS v. Jean, 496

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U.S. 154, 161, 110 S. Ct. 2316, 110 L. Ed. 2d 134 (1990) (applying Hensley to EAJA

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fees); Atkins v. Apfel, 154 F.3d 986, 988-89 (9th Cir. 1998).

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In determining reasonableness, courts must consider, among other factors,

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the complexity of the case or the novelty of the issues, the skill required to perform

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the service adequately, the customary time expended in similar cases, as well as the

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attorney’s expertise and experience. Kerr v. Screen Extras Guild, Inc., 526 F.2d

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67, 70 (9th Cir. 1975); see also Widrig v. Apfel, 140 F.3d 1207, 1209 n.5 (9th Cir.

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1998). In determining what constitutes a reasonable fee award under the EAJA,

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“courts should generally defer to the ‘winning lawyer’s professional judgment as to

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how much time he was required to spend on the case.’” Costa v. Comm’r of Soc.

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Sec. Admin., 690 F.3d 1132, 1136 (9th Cir. 2012) (per curiam) (quoting Moreno v.

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City of Sacramento, 534 F.3d 1106, 1112-13 (9th Cir. 2008).

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2.

Analysis

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Here, Counsel seeks an award in a total amount of $7201.00 based upon 37.9

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hours of services at $190.00 per hour. Dkt. 23. Defendant argues that the amount

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of hours is not reasonable and seeks a “total reduction of $3,154.00, for a total

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allowable fee of $4,047.00.” Dkt. 24, Opp. at 8. Specifically, Defendant seeks to

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reduce the 15 hours Counsel indicates he spent reviewing the record and

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identifying issues for brief by 7 hours; and the 18.6 hours Counsel indicates he

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spent drafting the Joint Stipulation by 7.6 hours. Id. at 6, 8.
a.

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Counsel’s time spent prior to filing and reviewing the record and
identifying issues is reasonable

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Defendant seeks to deduct the total 2 hours Counsel spent prior to the filing

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of the complaint because EAJA “does not compensate work performed before a

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civil action is filed.” Dkt. 24, Opp. at 8. However, Counsel is not precluded from

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seeking compensation for work performed prior to filing the complaint. See Griffin

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v. Colvin, No. CV 15-535-E, 2016 WL 845254, at *6 (C.D. Cal. Mar. 4, 2016)

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(rejecting Defendant’s argument that plaintiff cannot seek compensation for work

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prior to filing the action); see also Thompson v. Astrue, No. 2:11-CV-0429 EFB,

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2012 WL 5949218, at *2 (E.D. Cal. Nov. 28, 2012) (rejecting similar argument).

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Moreover, there is nothing in the record indicating this limited time was

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unreasonable.

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Defendant also seeks to reduce the 15 hours Counsel indicates he spent

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reviewing the record and identifying issues for briefing by 7 hours. Dkt. 24, Opp. 3,

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6. Defendant argues Counsel merely string cited to the medical records, without

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parentheticals which could “easily be obtained by a quick scan of the record,” and

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Counsel’s identification of issues was “limited” by the appeal. Id. at 6 & n.9.

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However, Counsel was only Plaintiff’s appellate counsel in federal court and

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needed to gain “familiarity” with the administrative record. Dkt. 25, Response at

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2. Moreover, regardless of which portions of the record were ultimately cited,

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Counsel would need to do more than a “quick scan” of the 1705-page record in

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order to properly review the evidence and identify issues for appeal. Hence, the

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Court finds the 15 hours spent reviewing the record and identifying issues for the

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brief are reasonable.

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b.

Counsel’s time spent drafting the joint stipulation is unreasonable

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As a preliminary matter, Counsel’s itemized time entries are in a block-

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billing format with the total daily time spent working on Plaintiff’s case rather than

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itemizing time expended on specific tasks.1 See Dkt. 23-2, Ex A. “[B]lock-billing,”

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which bundles tasks by day or by a block of time rather than itemizing the time

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spent on specific tasks, makes it “extremely difficult for a court to evaluate the

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reasonableness of the number of hours expended.” J & J Sports Prods., Inc. v.

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Barajas, No. 115-CV-01354-DAD-JLT, 2017 WL 469343, at *4 (E.D. Cal. Feb. 2,

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2017). Where a counsel’s time entries are not sufficiently detailed as a result of

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block-billing, the court should either request more information or “simply reduce[]

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the fee to a reasonable amount.” Fischer v. SJB-P.D. Inc., 214 F.3d 1115, 1121 (9th

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Cir. 2000).

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In addition, the Court finds the 18.6 hours Counsel indicates he spent

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drafting Plaintiff’s portion of the Joint Stipulation are unreasonable because

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Plaintiff’s briefing was largely recycled from prior cases. The Joint Stipulation

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addressing four issues spans forty-three pages, of which twenty-one pages are

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Plaintiff’s portion. See JS. Upon review, Plaintiff’s portion of the Joint Stipulation

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appears to have been largely copied and pasted from those prepared by Counsel in

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other cases. For example, Plaintiff’s fourth argument, which makes up about four

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pages, is almost entirely copied and pasted verbatim with the exception of one

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footnote and several sentences. JS at 34-38; see Dkt. 24, Opp. at 5 & n.8; see also

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Dkt. 24-3, Ex. C; Dkt. 24-3, Ex. D. Similarly, three of the five pages comprising

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Plaintiff’s first argument appear to be copied and pasted from prior joint

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stipulations. JS at 4-9; see Dkt. 24, Opp. at 3-4 & nn. 2-3; see also Dkt. 24-1, Ex. A;

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Counsel’s time entries in drafting the Joint Stipulation, for a total of 18.6 hours,
are the following: On April 19, 2017, 7.7 hours to begin first draft of brief; on April
20, 2017, 6.8 hours to draft and edit brief; and on May 1, 2017, 4.1 for final edit of
brief and submission of Plaintiff’s portion of Joint Stipulation to Defendant for
review. Dkt. 23-2, Ex A.
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Dkt. 24-2, Ex. B. Additionally, nearly half of the six pages comprising Plaintiff’s

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second argument is copied and pasted from prior joint stipulations. JS at 16-22; see

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Dkt. 24, Opp. at 4-5 & nn. 5-6; see also Dkt. 24-1, Ex. A; Dkt. 24-2, Ex. B.
Accordingly, because (1) Plaintiff’s portion of the Joint Stipulation is largely

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recycled material from prior cases, and (2) Counsel’s block-billing prevents the

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Court from discerning how much time was approximately spent on different

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arguments of the Joint Stipulation, the Court deducts 4.6 hours from the 18.6 hours

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spent on the Joint Stipulation. See Phillips v. Colvin, No. ED CV 14-0935-DFM,

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2016 WL 2758250, at *6 (C.D. Cal. May 12, 2016) (reducing 8 hours from the 16

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hours spent on researching and preparing the joint stipulation because portions

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were “copied and pasted” from counsel’s other cases); see also Fouissi v. Astrue,

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No. 07-0445 DLB, 2008 WL 2018344, at *3 (E.D. Cal. May 6, 2008) (reducing 9

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hours from the number of hours spent researching and drafting a fees motion where

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the motion and supporting documentation contained mainly boilerplate-type

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language, with some customization). Hence, the Court awards EAJA fees in the

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reduced amount of $6,327.00.2

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B.

Fees May Be Paid To Plaintiff's Counsel, Absent Any Offset For

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Plaintiff's Outstanding Federal Indebtedness

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Generally, an EAJA fee award is payable to a prevailing plaintiff rather than

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to his attorney. Astrue v. Ratliff, 560 U.S. 586, 596-97, 130 S. Ct. 2521, 2529, 177

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L. Ed. 2d 91 (2010). Such payment is offset to satisfy any pre-existing debt the

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plaintiff owes to the federal government. Id. However, when the plaintiff validly

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assigns his EAJA fee award to his attorney, the amount awarded, subject to any

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offset, should be paid directly to the attorney. See Phillips v. Colvin, No. CV 12-

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5308 RNB, 2016 WL 2758250, at *6 (C.D. Cal. May 12, 2016) (“Like this Court, a

Applicable Law

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A deduction of 4.6 hours from Counsel’s total of 37.9 amounts to an award of 33.3
hours at $190.00 per hour for a total of $6,327.00.
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number of other courts in this district have concluded that Ratliff does not preclude

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direct payment to a plaintiff’s counsel where there has been a valid assignment,

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subject to an offset.”); Cunningham v. Colvin, No. CV 13-1094-E, 2014 WL

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3737957, at *5 (C.D. Cal. July 29, 2014) (stating if the government determines a

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plaintiff does not owe a federal debt, then the government shall cause her EAJA

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award to be made directly to her counsel, to whom she validly assigned the EAJA

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award).

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2.

Analysis

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Here, Defendant may pay EAJA fees to Plaintiff’s counsel, subject to

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Plaintiff’s outstanding federal indebtedness. Astrue, 560 U.S. at 596-97. While

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Defendant argues EAJA fees must be payable to Plaintiff, Dkt. 24, Opp. at 8,

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Plaintiff appears to have validly assigned his EAJA fees to Counsel. Moreover,

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Defendant’s Opposition does not challenge the validity of Plaintiff assigning his

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EAJA fees to Counsel in the contingency fee agreement. Dkt. 23-3, Ex. B,

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Contingency Fee Agreement. Thus, subject to any offset, Counsel is entitled to

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direct payment of Plaintiff’s EAJA award.

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IV.

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ORDER

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Based on the foregoing, IT IS HEREBY ORDERED: (1) Counsel’s Motion

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for Attorney Fees Pursuant to 42 U.S.C. § 406(b) is GRANTED IN PART; and

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(2) Defendant is directed to pay Counsel the sum of $6,327.00, subject to

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Plaintiff’s outstanding federal debts.

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Dated: January 09, 2018
HONORABLE KENLY KIYA KATO
United States Magistrate Judge

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