Dearmon v. Commissioner of Social Security

Filing 37

FINDINGS AND RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 9/24/2013 RECOMMENDING that fees pursuant to the EAJA be awarded to the plaintiff in the amount of $4,242.48; ORDERING that any objections be filed within fourteen (14) days. (Michel, G)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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CINDI DEARMON,

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Plaintiff,

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No. 2:13-cv-0230 GEB CKD

v.

FINDINGS AND RECOMMENDATIONS

CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.

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Plaintiff’s motion for an award of attorney’s fees under the Equal Access to Justice Act

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(EAJA), 28 U.S.C. § 2412(d)(1), is pending before the court. Plaintiff seeks fees in the amount of

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$7,790.47 based on 41.6 hours of attorney time and costs in the amount of $101.80. Defendant

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does not contend EAJA fees should not be awarded but contests the reasonableness of the fees

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requested by plaintiff. Defendant contests not the hourly rate1 but the number of hours claimed

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by plaintiff’s counsel. In addition, defendant contends any fee that is awarded must be payable to

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the plaintiff.
The EAJA provides that the prevailing party in a civil action against the United States

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may apply for an order for attorney’s fees and expenses within thirty days of final judgment in the
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Plaintiff claims an hourly rate of $184.32 for worked performed in 2012 and $186.55 for work
performed in 2013.
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action. An applicant for Social Security benefits receiving a remand under sentence four of 42

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U.S.C. § 405(g) is a prevailing party, regardless of whether the applicant later succeeds in

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obtaining the requested benefits. Shalala v. Schaefer, 509 U.S. 292 (1993). In this case, the

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matter was remanded under sentence four for further proceedings pursuant to the order of the

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court on cross-motions for summary judgment. ECF No. 32. The court must allow the fee award

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unless it finds that the position of the United States was substantially justified. Flores v. Shalala,

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49 F.3d 562, 568-69 (9th Cir. 1995). In this case, defendant does not contend its position was

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substantially justified.

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The EAJA directs the court to award a reasonable fee. In determining whether a fee is

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reasonable, the court considers the hours expended, the reasonable hourly rate, and the results

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obtained. See Commissioner, INS v. Jean, 496 U.S. 154 (1990); Hensley v. Eckerhart, 461 U.S.

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424 (1983); Atkins v. Apfel, 154 F.3d 986 (9th Cir. 1998). Defendant does not contest the hourly

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rate claimed but contends the hours claimed are unreasonable. This contention is well taken.

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Plaintiff’s counsel has itemized hours related to an order to show cause which was issued because

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counsel had erroneously filed several social security actions in the wrong venue. ECF No. 24. It

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is unreasonable to charge either defendant or plaintiff’s client for hours attributable to the

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incompetence of plaintiff’s counsel. No award should be made for the 6.3 hours claimed in

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connection with the order to show cause and transfer of this action to the appropriate venue.

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Plaintiff’s counsel has also demonstrated no billing judgment with respect to the repeated use of

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0.1 hour increments for tasks which clearly do not take six minutes to accomplish. The court has

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carefully reviewed the tasks associated with the 0.1 hour increments (1.4 hours total) and has

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concluded these tasks should reasonably have taken no more than 0.5 hours total. Similarly,

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plaintiff’s counsel frequently bills 0.2 and 0.3 increments (3.8 hours total). The court concludes

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these tasks cumulatively should reasonably have taken no more than 2 hours. The 3.9 hours

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claimed by plaintiff’s counsel for reviewing the Appeals Council denial and the ALJ decision,

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drafting a form complaint, and serving process is also unreasonable and should be reduced to a

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total of 1.0 hour. Plaintiff’s counsel has similarly claimed excessive hours for reviewing the

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administrative transcript, writing the confidential letter brief, drafting the opening brief,
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reviewing defendant’s response, drafting a reply and reviewing the findings and

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recommendations (24.7 hours). Although the administrative record was relatively extensive, this

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case did not present particularly complex issues and the briefing by plaintiff’s counsel was of

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inferior quality. The court concludes that no more than 19 hours were reasonably expended on

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these tasks. Finally, plaintiff’s counsel claims 1.5 hours incurred in connection with the motion

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for EAJA fees. Again, the amount claimed is inflated in light of counsel’s experience in

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preparing EAJA applications. One half hour was reasonably expended on this task. Plaintiff’s

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claimed costs of $101.80 are unsupported. The $79.60 associated with downloading briefs and

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the transcript is unreasonable in that attorneys of record receive one free electronic copy of all

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documents filed electronically. See http://www.pacer.gov/psc/efaq.html#CMECF (E.D. Cal.

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website, Frequently Asked Questions). The $19.5 claimed cost for certified mail is unreasonable

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in that plaintiff was granted in forma pauperis status and the Marshal was directed to serve

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summons in this action. ECF No. 5. No award of costs should be made. In sum, the court will

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recommend that the number of hours compensated be reduced to 21.6 hours at the hourly rate of

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$184.32 for worked performed in 2012 ($3,981.31) and 1.4 hours at the hourly rate of $186.55 for

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work performed in 2013 ($261.17) for a total of $4,242.48. The EAJA award must be made by

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this court to plaintiff, and not to counsel. See Astrue v. Ratliff, __ U.S. __, 130 S. Ct. 2521

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(2010).

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Accordingly, IT IS HEREBY RECOMMENDED that fees pursuant to the EAJA be
awarded to plaintiff in the amount of $4,242.48.

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These findings and recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days

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after being served with these findings and recommendations, any party may file written

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objections with the court and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections

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within the specified time may waive the right to appeal the District Court’s order. Martinez v.

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Ylst, 951 F.2d 1153 (9th Cir. 1991).

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Dated: September 24, 2013

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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dearmon0230.eaja

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