Ferrando v. Commissioner of Social Security

Filing 61

ORDER signed by Judge Garland E. Burrell, Jr. on 3/14/2013 GRANTING 50 Plaintiffs Motion for Attorney Fees; Plaintiff is awarded $21,529.54 in EAJA attorneys' fees and costs. The Commissioner shall pay this sum to Plaintiff within 60 days from the date on which this Order is filed. (Reader, L)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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Matt A. Ferrando,
Plaintiff,

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v.

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Commissioner of Social Security,

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Defendant.
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2:08-cv-02470-GEB-CMK
ORDER GRANTING MOTION FOR
ATTORNEYS’ FEES AND COSTS

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Plaintiff Matt A. Ferrando moves for $21,921.54 in attorneys’

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fees

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prescribed in 28 U.S.C. § 2412(d). (Pl.’s Appl., ECF No. 50, 2:12.)

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Defendant Commissioner of Social Security (“Commissioner”) originally

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opposed Plaintiff’s motion on the ground that it did not include an

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“itemized statement . . . stating the actual time expended and the rate

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at

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§ 2412(d)(1)(B). (Def.’s Opp’n, ECF No. 54, 2:4—8.) However, Plaintiff

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has since filed an itemized statement, (Decl. of Andrew P. Ragnes

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(“Ragnes Decl.”), ECF No. 55), and the Commissioner has not responded to

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that filing.

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and

which

costs

fees

under

and

the

other

Equal

Access

expenses

were

to

Justice

computed”

Act

as

(“EAJA”),

required

by

I. BACKGROUND

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On October 17, 2008, Plaintiff filed suit under 42 U.S.C.

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§ 405(g) for judicial review of the Commissioner’s final decision

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denying Plaintiff’s application for disability benefits. (ECF No. 1.)

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The Commissioner subsequently prevailed on its summary judgment motion,

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resulting in the denial of disability benefits being upheld. (ECF No.

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38.) The

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Commissioner “determine when [Plaintiff’s] mental impairments became so

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severe as to render him disabled.”

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610, 612 (9th Cir. 2011). It also disapproved of the Commissioner’s

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argument that Plaintiff’s treating psychiatrist’s opinion was entitled

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to less weight since it was based only on Plaintiff’s subjective

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allegations. Id. at 612 n.2. On November 17, 2011, the district court

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remanded the action to the Commissioner and closed the case. (ECF No.

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48.) On December 5, 2011, Plaintiff filed the instant motion for EAJA

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attorneys’ fees, and on March 27, 2012, Plaintiff supplemented his

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application with an itemized statement. (ECF Nos. 50, 55.)

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Ninth

Circuit

reversed

and

remanded,

directing

that the

Ferrando v. Comm’r, 449 Fed. App’x

II. STANDARD

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To recover attorneys’ fees from the Commissioner under the

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EAJA, a plaintiff must show that “(1) [he] is the prevailing party; (2)

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the government has not met its burden of showing that its positions were

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substantially justified or that special circumstances make an award

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unjust; and (3) the requested attorney’s fees and costs are reasonable.”

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Perez-Arellano v. Smith, 279 F.3d 791, 793 (9th Cir. 2002) (citing 28

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U.S.C. § 2412(d)(1)(A)). A successful EAJA fee applicant must also file

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a fee application within thirty days of entry of final judgment, and

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support the application with an itemized statement of fee rates and

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attorney time expended. 28 U.S.C. § 2412(d)(1)(B); Poole v. Rourke, 779

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F. Supp. 1546, 1560 (E.D. Cal. 1991). In addition, a plaintiff must

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satisfy a net worth requirement, by showing he is “an individual whose

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net worth did not exceed $2,000,000 at the time the civil action was

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filed.”

28 U.S.C. § 2412(d)(2)(B).
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III. DISCUSSION
A. Eligibility for Fees

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Plaintiff satisfies the net worth and timeliness requirements

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of the EAJA. Plaintiff’s proof that he possessed a net worth of under

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$2,000,000 at the time the action was initiated is undisputed, and his

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initial fee application was timely since it was filed eighteen days

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after

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application with an itemized statement during the thirty-day statutory

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period for EAJA fee applications. In response to the Commissioner’s

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objection concerning this omission, Plaintiff submitted an itemized

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statement, which is considered since the Commissioner neither contests

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its sufficiency nor argues that the Commissioner suffered prejudice. See

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United States v. Hristov, 396 F.3d 1044, 1048 (9th Cir. 2005) (“When the

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government can show no prejudice from allowing an amendment to a fees

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application, it is unduly harsh not to allow an amendment to bring the

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application in conformity with a technical pleading requirement.”); id.

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at 1047—48 (permitting addition of itemized statement after expiration

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of

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requirements of EAJA § 2412).

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judgment

thirty-day

entered.

EAJA

However,

period

Plaintiff

under

statute

failed

to

support

incorporating

the

his

filing

Plaintiff is also the prevailing party in the litigation since

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he

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“terminat[ing] the litigation with victory for the plaintiff.” Shalala

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v. Schaefer, 509 U.S. 292, 301, 300 (1993) (ruling that a plaintiff such

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as Ferrando “who won a remand order, pursuant to sentence four of [42

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U.S.C.] § 405(g)” is a prevailing party). Therefore, Plaintiff is

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entitled to attorneys’ fees “unless the court finds that the position of

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the

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circumstances

obtained

United

an

order

States
make

was
an

remanding

the

substantially
award

unjust.”
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Commissioner’s

justified

or

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§

U.S.C.

decision

that

and

special

2412(d)(1)(A).

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Plaintiff bears the initial burden of pleading that the Commissioner’s

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position was not substantially justified. Scarborough v. Principi, 541

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U.S. 401, 414 (2004); accord In re Application of Mgndichian, 312 F.

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Supp.

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allegation, the burden shifts to the Commissioner to prove either that

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its position in the underlying litigation was substantially justified or

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that special circumstances make an award unjust. Scarborough, 541 U.S.

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at 416. Plaintiff alleges the Commissioner’s position was unjustified

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since Defendant improperly sought to discredit Plaintiff’s treating

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psychiatrist’s diagnosis, as was recognized by the Ninth Circuit, which

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criticized the Commissioner’s position and rejected it. (See Pl.’s Appl.

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5:5-20; Def.’s Mot. for Summ. J., ECF No. 33, 9:21-22, 10:1-2; Ferrando,

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449 Fed. App’x at 611—12 & n.2.) Plaintiff has thus met his pleading

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burden. The Commissioner does not oppose this portion of Plaintiff’s

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attorneys’

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substantially justified or that special circumstances make an award

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unjust. Accordingly, Plaintiff is entitled to reasonable attorneys’ fees

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and costs.

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B. Reasonable Fees and Costs

2d

1250,

fees

1255

(C.D.

motion,

and

Cal.

has

2003).

not

If

shown

Plaintiff

that

its

makes

position

this

was

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Since Plaintiff is entitled to fees, “[i]t remains for the

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district court to determine what fee is ‘reasonable.’” Hensley v.

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Eckerhart, 461 U.S. 424, 437 (1983) (setting forth this rule in fee

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shifting case under 42 U.S.C. § 1988); Costa v. Comm’r of Soc. Sec.

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Admin., 690 F.3d 1132, 1135 (9th Cir. 2012) (per curiam) (recognizing

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that the principles set forth in § 1988 cases apply to reasonable fee

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determinations under the EAJA). As the fee applicant, Plaintiff “bears

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the burden of establishing entitlement to an award and documenting the

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appropriate hours expended and hourly rates.” Hensley, 461 U.S. at 437.
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Further,

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“required to independently review [Plaintiff’s] fee request.” Gates v.

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Deukmejian, 987 F.2d 1392, 1401 (9th Cir. 1992); see also 28 U.S.C.

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§ 2412(d)(2)(A) (limiting awards to “reasonable” attorneys’ fees). “‘The

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most useful starting point for determining the amount of a reasonable

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fee is the number of hours reasonably expended on the litigation

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multiplied by a reasonable hourly rate.’” Sorenson v. Mink, 239 F.3d

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1140, 1145 (9th Cir. 2001) (quoting Hensley, 461 U.S. at 433); see also

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Gengler v. United States ex rel. Dep’t of Def. & Navy, 682 F. Supp. 2d

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1117, 1139 (E.D. Cal. 2010) (explaining that the figure generated from

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this computation is presumed to represent a reasonable fee award).

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Accordingly, Plaintiff’s requested hourly rates and hours expended are

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assessed in turn.

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“even

absent

defense

objections,”

the

district

court

is

1. Hourly Rates

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Plaintiff requests fees for work Sammis and Weems performed as

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experienced attorneys at the adjusted statutory maximum hourly rate of

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$172.85 in 2008; $172.24 in 2009; $175.06 in 2010; and $179.51 in 2011.

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(Ragnes Decl. ¶ 2.) “The government does not object to the requested

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adjusted statutory maximum hourly rate, and [Plaintiff] has calculated

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the rate correctly.” Nadarajah v. Holder, 569 F.3d 906, 918 (9th Cir.

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2009); see also Thangaraja v. Gonzales, 428 F.3d 870, 876—77 (9th Cir.

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2005) (detailing how this rate is calculated); Animal Lovers Volunteer

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Ass’n, Inc. v. Carlucci, 867 F.2d 1224, 1227 (9th Cir. 1989) (noting

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that a cost of living adjustment should be granted except in unusual

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circumstances), abrogated on other grounds by Sorenson, 239 F.3d at

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1149. “Accordingly, [Plaintiff] is awarded the requested [statutory

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maximum] hourly rate” for Sammis and Weems’s work. Nadarajah, 569 F.3d

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at 918.
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Plaintiff requests fees for Ragnes, a law clerk, at an hourly

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rate of $100 in 2008 and 2009, and $110 in 2010 and 2011. Plaintiff

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requests fees for Hull’s work as a non-attorney representative at a rate

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of $150 per hour for 2008, 2009, and 2010. Non-attorney representatives,

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such as Hull, are “known as ‘agents,’” and “assist parties with the

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presentation of their cases” before the Commissioner. Richlin Sec. Serv.

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Co. v. Chertoff, 553 U.S. 571, 575 n.2 (2008); see 42 U.S.C. § 406(a)(1)

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(enabling non-attorney representatives to “represent[] claimants before

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the Commissioner”).

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Section 2412 has been construed as authorizing fee awards for

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the work of paralegals and law clerks. E.g., Richlin, 553 U.S. at 572

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(2008) (declaring it “self-evident” that the EAJA’s provision for

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attorneys’ fees “embrace[s] paraglegal fees as well”); Nadarajah, 569

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F.3d at 918 (approving of EAJA fees for paralegals and law clerks under

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§ 2412). However, § 2412 does not encompass fees for non-attorney

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representatives such as Hull. See Richlin, 553 U.S. at n.2 & n.10

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(noting that § 2412(d)(2)(A) “makes no provision for agent fees” such as

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those of non-attorney representatives, since the statute authorizes fees

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for

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permitted to practice in federal court); 28 U.S.C. § 2412(d)(2)(A)

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(explicitly omitting references to compensable agent fees found in 5

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U.S.C. § 504(b)(1)(A) of the EAJA); see also Cato v. United States, 70

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F.3d 1103, 1105 n.1 (9th Cir. 1995) (recognizing that in this circuit

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non-attorneys cannot practice on behalf of others). Accordingly, Hull’s

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work as a non-attorney representative is not compensable under § 2412.

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However, Plaintiff also requests fees for Hull’s performance of work

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that is paralegal in nature, which is apart from her work as a non-

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attorney representative appearing before the Commissioner, to which

federal

court

litigants,

and

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non-attorneys

are

typically

not

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Plaintiff

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approved

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Sacramento, 534 F.3d 1106, 1114 n.2 (9th Cir. 2008).

is entitled
rate

for

to compensation

paralegals.

See

for Hull’s

generally

services

Moreno

v.

at the
City

of

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Plaintiff’s proposed rates of $100 and $110 per hour for

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Ragnes’s law clerk work are “‘in line with those [rates] prevailing in

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the community for similar services by [law clerks or paralegals] of

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reasonably comparable skill, experience and reputation.’” Nadarajah, 569

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F.3d at 918 (quoting Blum v. Stenson, 465 U.S. 886, 895 & n.11 (1984));

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see Koerner v. Astrue, No. CIV S-09-2240 LKK GGH, 2012 WL 530194, at *1

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(E.D. Cal. Feb. 17, 2012) (permitting EAJA fees for Ragnes at rate of

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$110 per hour); Stratton v. Glacier Ins. Adm’rs, Inc., No. 1:02-CV-06216

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OWW DLB, 2007 WL 1989097, at *4 (E.D. Cal. July 3, 2007) (awarding law

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clerks fees at rate of $100 per hour); Soda Mountain Wilderness Council

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v. Norton, No. Civ. S-04-2583 LKK/CMK, 2006 WL 2054062, at *4 n.7 (E.D.

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Cal. July 21, 2006) (noting that “the Supreme Court, and lower courts,

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have approved the inclusion of fees for law clerks and law students in

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fee awards under EAJA and analogous fee-shifting statutes”); Lucas v.

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White, 63 F. Supp. 2d 1046, 1060 nn.16—17 (N.D. Cal. 1999) (awarding

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fees at rate of $100 per hour for law clerks). Therefore, “[t]he

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requested hourly rates for the paralegal[ and law clerk work] are

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awarded.” Nadarajah, 569 F.3d at 918.

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Plaintiff also requests fees at a rate of $70 per hour for

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clerical work performed by Ragnes. However, these requests are not

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approved since fees for “purely clerical tasks” should be subsumed in a

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law firm’s overhead, not separately compensated. Neil v. Comm’r of Soc.

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Sec., No. 11-35996, 2012 WL 5462568, at *1 (9th Cir. Nov. 9, 2012)

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(affirming denial of fees for “purely clerical tasks” for this reason);

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see also Nadarajah, 569 F.3d at 925 (“disallow[ing]” fees for clerical
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work); Shinn v. Astrue, No. 1:04-cv-6050 TAG, 2008 WL 2073980, at *7

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(E.D. Cal. May 14, 2008) (finding clerical tasks are “not compensable”

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under the EAJA).

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2. Number of Hours

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Taking into account this court’s “overall sense of [the]

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suit,” Plaintiff is largely entitled to the reasonable attorneys’ fees

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that he seeks. Fox v. Vice, 131 S. Ct. 2205, 2216 (2011) (exhorting

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trial courts shifting fees not to “become green-eyeshade accountants,”

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but instead to award reasonable fees based on an “overall sense of a

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suit”). Further, although the fees Plaintiff requests from 2010 and 2011

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largely concern Plaintiff’s appeal to the Ninth Circuit, under the EAJA,

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Plaintiff

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litigation,” including fees incurred prosecuting his appeal. Nat’l Res.

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Def. Council, Inc. v. Winter, 543 F.3d 1152, 1164 (9th Cir. 2008).

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Accordingly, the portions of Plaintiff’s fee application based upon his

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Ninth Circuit appeal are “properly filed in the district court,” Ninth

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Circuit Rule 39-1.6 notwithstanding. Id.

is

entitled

to

attorneys’

fees

for

“all

levels

of

the

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Thus for attorney Sammis’s work, Plaintiff is entitled to

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$3,054.32 based upon Sammis’s fees for .8 hours in 2008; 5.8 hours in

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2009; 8.9 hours in 2010; and 2 hours in 2011. For attorney Weems’s work,

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Plaintiff is entitled to $8,862.02 based upon Weems’s fees for 25.5

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hours in 2010 and 24.5 hours in 2011. For Ragnes’s work as a law clerk,

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Plaintiff is entitled to $8,765 based upon Ragnes’s fees for 32.1 hours

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in 2008 and 2009, and 50.5 hours in 2010 and 2011. None of Ragnes’s

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clerical work (primarily filing and Pacer downloads) is compensable. For

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Hull’s paralegal work, Plaintiff is entitled to $385 based upon her fees

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for 1.1 hours in 2008 and 2009, and 2.5 hours in 2010. Plaintiff is

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additionally entitled to $463.20 in costs connected with the case. See
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Int’l Woodworkers of Am., AFL-CIO, Local 3-98 v. Donovan, 792 F.2d 762,

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767 (9th Cir. 1985) (approving of EAJA cost shifting for travel,

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postage, and other expenses such as those billed here); Catholic Soc.

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Servs., Inc., 837 F. Supp. 2d at 1076—77 (same). Accordingly, in sum,

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Plaintiff is entitled to $21,529.54 in attorneys’ fees and costs.

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VI. CONCLUSION

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For the stated reasons, Plaintiff is awarded $21,529.54 in

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EAJA attorneys’ fees and costs. The Commissioner shall pay this sum to

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Plaintiff within sixty (60) days from the date on which this Order is

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filed.

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Dated:

March 14, 2013

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GARLAND E. BURRELL, JR.
Senior United States District Judge

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