Thompson v. Commissioner of Social Security

Filing 30

ORDER signed by Magistrate Judge Edmund F. Brennan on 11/28/12 ORDERING that Plaintiff's MOTION for Attorney's Fees 26] is GRANTED. Plaintiff is awarded attorneys' fees under the EAJA in the amount of $7559.78; and Pursuant to A strue v. Ratliff, 130 S.Ct. 2521, 2010 WL 2346547 (2010), any payment shall be made payable to Plaintiff and delivered to Plaintiff's counsel, unless plaintiff does not owe a federal debt. If the United States Department of the Treasury determines that plaintiff does not owe a federal debt, the government shall accept Plaintiffs assignment of EAJA fees and pay fees directly to plaintiff's counsel. (Mena-Sanchez, 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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VICKI L. THOMPSON,
Plaintiff,

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vs.

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No. 2:11-cv-0429 EFB

MICHAEL J. ASTRUE,
Commissioner of Social Security,

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Defendant.

ORDER
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Plaintiff moves for an award of attorneys’ fees under the Equal Access to Justice Act

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(EAJA), 28 U.S.C. § 2412(d)(1). Plaintiff seeks $6,649.88 in fees based on 36.9 hours spent by

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counsel representing her in the instant action.1 Dckt. No. 26. Defendant contends that (1)

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plaintiff’s request is excessive and unreasonable and (2) that any EAJA fee award should be

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made payable to plaintiff and not to plaintiff’s counsel. Def.’s Opp’n to Pl.’s Mot. for EAJA

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Fees, Dckt. No. 28.

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Plaintiff initially sought an award of $6,649.88. Plaintiff, however, now seeks
compensation for an additional 5 hours at $181.98 per hour for preparing the reply brief to the
present motion. See Reply, Dckt. No. 29 at 6.
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I.

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Reasonableness of Fees Sought
An EAJA fee award must be reasonable. Sorenson v. Mink, 239 F.3d 1140, 1145 (9th

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Cir. 2001). In determining whether a fee is reasonable, the court considers the hours expended,

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the reasonable hourly rate, and the results obtained. See Commissioner, INS v. Jean, 496 U.S.

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154 (1990); Hensley v. Eckerhart, 461 U.S. 424 (1983); Atkins v. Apfel, 154 F.3d 986 (9th Cir.

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1998). “[E]xcessive, redundant, or otherwise unnecessary” hours should be excluded from a fee

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award, and charges that are not properly billable to a client are not properly billable to the

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government. Hensley, 461 U.S. at 434.
Here, defendant contends that plaintiff’s request for fees based on 36.9 hours2 was

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unreasonable because 1) plaintiff’s brief raised routine issues, 2) plaintiff’s attorney billed for

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work performed prior to filing the instant action, and 3) both of plaintiff’s attorneys billed

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duplicative time for preparing the EAJA pleadings.
Defendant first argues that the amount of time one of plaintiff’s attorneys spend

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preparing plaintiff’s brief should be reduced from 21.9 hours to 18 hours because plaintiff’s brief

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only raised routine issues and the administrative record only contained 235 pages of medical

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records. Plaintiff’s memorandum in support of her motion for summary judgment was 21 pages

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long.3 Although the court agrees with defendant that the issues raised in this case were fairly

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routine, the court finds that spending approximately one hour a page, even for routine arguments,

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is not unreasonable. See Pierce v. Astrue, No. 5:10-CV-2017 PSG, 2012 WL 1595753 (N.D.

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Cal. May 4, 2012) (holding that “[s]pending approximately one hour per page covering a case

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that is not particularly complex or challenging is reasonable.”).

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Defendant incorrectly states that plaintiff seeks attorney’s fees based on 30.9 hours.
Dckt. No. 28 at 1.

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Plaintiff contends that the memorandum is 22 pages long. Although the memorandum
concludes on page 22, the page on which is begins is numbered page 2.
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Furthermore, defendant’s argument that the requested hours should be reduced because

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the record only contains 235 pages of medical records overlooks the fact that the administrative

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record totals 485 pages. Plaintiff’s counsel would not have been effectively representing

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plaintiff if the sole focus was on the medical portion of the record. Indeed, the 250 pages of non-

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medical evidence proved to be more important to plaintiff’s success in her motion for summary

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judgement, as the court ultimately did not rely directly on plaintiff’s medical records in

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determining that the Commissioner’s decision was not fully supported by substantial evidence.4

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See Dckt. No. 24 at 5-9.

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Defendant also contends that plaintiff’s requested hours should be reduced because

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plaintiff’s counsel impermissibly billed .9 hours for work performed before this civil action was

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filed. Dckt. No. 28 at 3. Defendant cites to 28 U.S.C. 2412(d); Melkonyan v. Sullivan, 501 U.S.

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89, 97 (1991), and Mendenhall v. NTSB, 213 F.3d 464, 469 (9th Cir. 2000), for the proposition

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that plaintiff is precluded from seeking any fees under EAJA for work completed prior to the

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commencement of this civil action. Dckt. No. 28 at 3.

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The cited authority does not support defendant’s position. In Mendenhall, the United

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States Court of Appeals for the Ninth Circuit held that 18 U.S.C. 2412(d) did not permit an

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award for attorney’s fees for work conducted during pre-litigation administration proceedings.

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213 F.3d at 467-69. The court, however, did not hold that EAJA precluded an award for

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attorney’s fees for work performed in preparation for filing a civil action. In Melkonyan, the

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United States Supreme Court observed that while EAJA generally does not provide for an award

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of attorney’s fees for work performed in administrative proceedings, EAJA fees for work done at

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the administrative level may be collected where “the district court retains jurisdiction of the civil

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action and contemplates entering a final judgment following the completion of administrative

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In this case, the prevailing argument was that the Appeals Council erred in failing to
consider whether plaintiff’s prior work as a tomato inspector constituted an “unsuccessful work
attempt.” Dckt. No. 24 at 5-9.
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proceedings.” 501 U.S. at 97. The cases relied upon by defendant hold that EAJA generally

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does not permit an award for attorney’s fees for work conducted in a prior administrative

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proceeding.

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The .9 hours contested by defendant, however, was not for work performed during an

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administrative proceeding. Rather, the time was spend reviewing the case to advise plaintiff on

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the possibility of pursuing an action in federal court for judicial review of the Commissioner’s

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decision. Pl.’s Mot. for EAJA Fees, Ex. 2, Dckt. No. 26-2. Accordingly, the cases relied upon

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by defendant do nor preclude plaintiff from seeking compensation for the .9 hours of work

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performed prior to filing this civil action.

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Furthermore, defendant’s argument overlooks the fact that some work must be performed

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prior to the commencement of a civil action. As defendant is aware, a civil action is commenced

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by the filing of a complaint. See Fed. R. Civ. P. 3. To file a proper complaint, an attorney must

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investigate relevant facts and law and, of course, spend time drafting a complaint. Plaintiff’s

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counsel’s review of the file to determine the appropriateness of challenging the Commissioner’s

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decision in this court was separate from the administrative proceeding and clearly completed in

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relation to this civil action. The court therefore rejects defendant’s argument that plaintiff is not

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entitled to compensation for the .9 hours spent preparing to file the instant action. See Garcia v.

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Astrue, No. 1:10-cv-00542, 2012 WL 1205692, *6-7 (E.D. Cal. April 11, 2012) (rejecting

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argument that plaintiff was not entitled to attorneys’ fees under EAJA for time spent “reviewing

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the ALJ’s decision and determining the merits of a federal court appeal . . . .”).

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Lastly, defendant argues that the requested hours are unreasonable because plaintiff’s

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attorneys billed duplicative time. Dckt. No. 28 at 3. Specifically, defendant points out that Ms.

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Bohr billed 2 hours for preparing the EAJA petition and time sheets, while Ms. Cerney spent .6

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hours reviewing these documents. Defendant further notes that Ms. Bohr billed 20 hours for

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briefing in this case, and Ms. Cerney billed 1.3 hours to review the briefs.

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As for the time spent preparing the EAJA petition, plaintiff explains that Ms. Bohr spent

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2 hours preparing the EAJA petition and the supporting memorandum. Dckt. No. 29 at 5.

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Plaintiff further explains that, Ms. Cerney did not spend .6 hours reviewing the petition prepared

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by Ms. Bohr; rather, she spent .5 hours preparing her time sheet and .1 hour reviewing her

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declaration. Id. see Dckt. Nos. 26-2, 26-3. As these tasks are separate from those performed by

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Ms. Bohr, the court find that the time spent by both attorneys in preparing the EAJA petition was

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not duplicative.

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The court also disagrees with defendant’s position that the 1.3 hours Ms. Cerney spent

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reviewing the briefs prepared by Ms. Bohr is duplicative. Here, the submitted declarations of

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Ms. Cerney and Ms. Bohr reflect that Ms. Bohr was responsible for drafting the pleadings filed

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in this action. Dckt. Nos. 26-2, 26-3. Ms. Cerney, as the only attorney of record, simply billed

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for time spent reviewing the pleadings drafted by Ms. Bohr prior to filing them with the court.

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Dckt. No. 26-2. The court agrees with plaintiff that it would have been imprudent for Ms.

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Cerney to simply sign and file the pleadings prepared by Ms. Bohr, an out of state attorney,

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without conducting any review.1 Given the length of the pleadings drafted by Ms. Bohr, the

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court finds that the 1.3 hours Ms. Cerney billed for reviewing these pleadings was reasonable.
The court has scrutinized closely the hours claimed by counsel and finds no reason to

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believe they are inflated. Counsel therefore will be paid for the claimed hours of attorney time

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spent in the prosecution of this action. Additionally, the court finds that plaintiff’s counsel is

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entitled to compensation for the 5 additional hours spent preparing the reply to this motion.

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III.

Payment to Plaintiff or Plaintiff’s Counsel
Defendant further contends that any award under EAJA must be made payable to

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plaintiff, not to plaintiff’s counsel.

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Such conduct would likely result in a violation of Rule 11 of the Federal Rule of Civil
Procedure and possibly a breach of Ms. Cerney’s obligation to her client.
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In Astrue v. Ratliff, 130 S. Ct. 2521, 2522 (2010), the Supreme Court held that “a

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§ 2412(d) fees award is payable to the litigant and is therefore subject to a Government offset to

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satisfy a pre-existing debt that the litigant owes the United States.” In Ratliff, the plaintiff’s

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counsel was successful in plaintiff’s Social Security benefits suit against the United States. Id.

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Thereafter, the district court granted plaintiff’s unopposed motion for fees under the EAJA. Id.

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However, before paying the fee award, the government discovered that plaintiff owed the United

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States a debt that predated the award, and accordingly, the government sought an offset of that

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owed amount. Id. Plaintiff’s counsel intervened and argued that the fees award belonged to

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plaintiff’s counsel, and thus was not subject to offset for the litigant’s federal debts. Id. The

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Supreme Court disagreed, finding that “Congress knows how to make fee awards payable

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directly to attorneys where it desires to do so,” and because the fee was payable to a “prevailing

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party,” Congress intended the fee to go to the litigant, and not the attorney. Id. at 2527-29.

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In light of Ratliff, plaintiff, as the prevailing litigant, would normally be awarded the fees

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described above, subject to any offset for applicable government debts. However, plaintiff has

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assigned the right to receive the fees to her attorney, Dckt. No. 26-1, and defendant contends that

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if plaintiff does not owe a government debt, “then the Government will accept Plaintiff’s

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assignment of EAJA fees and make the check payable to Counsel.” Dckt. No. 28 at 5.

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Defendant’s proposal is reasonable. Defendant may make payment to plaintiff’s counsel

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provided plaintiff has no government debt that requires offset. See Calderon v. Astrue, 2010 WL

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4295583, at *8 (E.D. Cal. Oct. 22, 2010); see also Castaneda v. Astrue, 2010 WL 2850778, at *3

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(C.D. Cal. July 20, 2010) (“The Court concludes that in light of the assignment, the amount

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awarded herein, subject to any legitimate offset, should be paid directly to Plaintiff’s counsel.”).

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IV.

Conclusion

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s motion for attorneys’ fees, Dckt. No. 26, is granted;

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2. Plaintiff is awarded attorneys’ fees under the EAJA in the amount of $7559.78; and

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3. Pursuant to Astrue v. Ratliff, 130 S.Ct. 2521, 2010 WL 2346547 (2010), any payment

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shall be made payable to plaintiff and delivered to plaintiff’s counsel, unless plaintiff does not

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owe a federal debt. If the United States Department of the Treasury determines that plaintiff

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does not owe a federal debt, the government shall accept plaintiff’s assignment of EAJA fees and

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pay fees directly to plaintiff’s counsel.

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DATED: November 28, 2012.

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