Campbell et al v. Commissioner of Social Security

Filing 25

ORDER signed by Magistrate Judge Kendall J. Newman on 7/17/19 GRANTING in part 22 Motion for Attorney Fees. Plaintiff is awarded attorneys' fees and expenses in the total amount of $4,274.32. If the government determines that Plaintiff does not owe a federal debt that qualifies for offset, payment may be made in the name of Plaintiff's Counsel. (Mena-Sanchez, L)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DANIELLA LYNNE CAMPBELL obo
KDC,
Plaintiff,

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ORDER
v.

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No. 2:17-cv-2501-KJN

COMMISSIONER OF SOCIAL
SECURITY,

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Defendant.

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Plaintiff commenced this social security action on November 29, 2017, and Defendant

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filed an answer on June 25, 2018. (ECF Nos. 1, 9.) On March 7, 2019, Defendant filed a

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stipulation to remand to the agency for further administrative proceedings, which the court

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ordered on March 11. (ECF Nos. 19, 20.)
Thereafter, Plaintiff filed the instant motion for attorneys’ fees. (ECF No. 22.) Defendant

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opposes, contending that “special circumstances make an award of fees unjust,” and that the fee

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request is unreasonable. (ECF No. 24.)
After carefully considering the parties’ briefing, the court’s record, and the applicable law,

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the Court GRANTS IN PART Plaintiff’s motion for EAJA fees.

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Legal Standard

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The Equal Access to Justice Act (“EAJA”) provides for an award of fees, other expenses,

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and costs to a prevailing plaintiff in an action for judicial review of the Social Security

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Administration’s actions “unless the position of the United States was substantially justified or

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that special circumstances make an award unjust.” 28 U.S.C. § 2412(d)(1)(A); see also sub. (B)

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(the prevailing, eligible party “shall also allege that the position of the United States was not

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substantially justified.”). The Supreme Court has defined “substantial justification” as:

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justified in substance or in the main – that is, justified to a degree that could
satisfy a reasonable person. [This standard] is no different from the “reasonable
basis in both law and fact” formulation adopted by the Ninth Circuit and the vast
majority of other Courts of Appeals that have addressed this issue.

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Pierce v. Underwood, 487 U.S. 552, 565 (1988). A position does not have to be correct to be

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substantially justified; rather, the standard is satisfied if there is a “genuine dispute.” Id. at 565

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and 566 n.2; see also Lewis v. Barnhart, 281 F.3d 1081, 1083 (9th Cir. 2002). In determining the

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reasonableness of the government’s position under the ‘totality of the circumstances’ test, the

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district court reviews both the underlying governmental action being defended in the litigation

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and the positions taken by the government in the litigation itself. § 2412(d)(1)(B); Gutierrez v.

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Barnhart, 274 F.3d 1255, 1259 (9th Cir. 2001). The government has the burden of demonstrating

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that its position was substantially justified, but its failure to prevail does not raise a presumption

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that its position was not substantially justified. Kali v. Bowen, 854 F.2d 329, 332 (9th Cir. 1988).

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As to the amount to award, the EAJA directs that any fee must be reasonable. 28 U.S.C.

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§ 2412(d)(2)(A). In determining whether a fee is reasonable, the district court considers the

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reasonable hourly rate, the hours expended, and the results obtained. See Commissioner, INS v.

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Jean, 496 U.S. 154, 163 (1990); Hensley v. Eckerhart, 461 U.S. 424, 437 (1983); Atkins v. Apfel,

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154 F.3d 986, 988 (9th Cir. 1998). The applicant must present “an itemized statement from any

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attorney or expert witness representing or appearing in behalf of the party stating the actual time

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expended and the rate at which fees and other expenses were computed.” § 2412(d)(1)(B). An

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increase in the statutory rate of $125 may be justified to account for increases in the cost of living.

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See Sorenson v. Mink, 239 F.3d 1140, 1148–49 (9th Cir. 2001); see also Thangaraja v. Gonzales,
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428 F.3d 870, 876-77 (9th Cir. 2005) (holding that the cost of living adjustment to the statutory

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cap is computed by multiplying the statutory cap by the consumer price index for urban

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consumers for the year in which the fees were earned, then dividing by the consumer price index

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figure on the date that the cap was imposed by Congress); Ninth Circuit Rule 39–1.6 and Notice

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re: EAJA rates (available at http://www.ca9.uscourts.gov/content/view.php?pk_id=0000000039).

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EAJA fee applications are due “within thirty days of final judgment,” which is “a

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judgment that is final and not appealable . . . .” 28 U.S.C. § 2412(d)(2)(G).
The district court may, in its discretion, “reduce the amount to be awarded” or “deny an

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award, to the extent that the prevailing party during the course of the proceedings engaged in

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conduct which unduly and unreasonably protracted the final resolution of the matter in

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controversy.” 28 U.S.C. § 2412(d)(1)(C); Outdoor Sys., Inc. v. City of Mesa, 997 F.2d 604, 619

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(9th Cir.1993) (Under Hensley, a district court may “disallow any fees for time spent litigating

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the case after the last benefit won from the Defendant.”).

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Parties’ Arguments

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Plaintiff asserts she was the prevailing party, having obtained a remand for further

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proceedings under sentence four of 42 U.S.C. § 405(g). Shalala v. Schaefer, 509 U.S. 292, 300-

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02 (1993). Plaintiff also asserts that Defendant’s position was not substantially justified, given

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that Defendant voluntarily stipulated to a remand based on the ALJ’s failure to comply with

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Acquiescence Ruling 04–01(9). (See ECF No. 22.)

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Defendant does not dispute Plaintiff’s claims regarding her prevailing party status and the

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lack of substantial justification. Instead, Defendant contends that special circumstances make an

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award of EAJA fees unjust. 28 U.S.C. § 2412(d)(1)(A). Defendant notes that Plaintiff’s motion

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for summary judgment was late by almost six months due to counsel’s lack of diligence, that the

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Court imposed monetary sanctions on Plaintiff for failing to respond to an OSC (which Plaintiff

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ignored for an additional three months), and that Defendant ultimately stipulated to remand. (See

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ECF No. 24.)
Plaintiff did not respond to Defendant’s “special circumstances” contentions.

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Analysis

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The EAJA grants a court the power to reject an award of attorneys' fees if the court finds

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that “special circumstances make an award unjust.” 28 U.S.C. § 2412(d)(1)(A). “The Ninth

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Circuit has held that special circumstances are present when the government argues for ‘a novel

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but credible extension or interpretation of the law,’ when its action concerns an issue on which

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‘reasonable minds could differ,’ or when the action involves an ‘important and doubtful

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question[.]’” Orantes-Hernandez v. Holder, 713 F. Supp. 2d 929, 955–56 (C.D. Cal. 2010)

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(quoting Hoang Ha v. Schweiker, 707 F.2d 1104, 1106 (9th Cir. 1983); League of Women Voters

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of California v. FCC, 798 F.2d 1255, 1260 (9th Cir.1986); and Minor v. United States, 797 F.2d

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738, 739 (9th Cir. 1986)). If denying fees for special circumstances, the Ninth Circuit counsels

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that the district court should “articulate its reasoning, identify[] any special circumstances and

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explain[] why they render an award unjust.” Herrington v. County of Sonoma, 883 F.2d 739, 744

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(9th Cir. 1989). It is the government’s burden to show special circumstances. Id.

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After reviewing the record, the Court finds that, despite Plaintiff’s inattentiveness to this

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case, an outright denial of fees is unwarranted. As Defendant appears to accept, Plaintiff was the

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prevailing party, and the ALJ failed to call a witness as required by law; thus the ALJ’s decision

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was not substantially justified. Gutierrez v. Barnhart, 274 F.3d 1255 (2001) (“A substantially

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justified position must have a reasonable basis both in law and fact.”); Flores v. Shalala, 49 F.3d

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562, 569 (9th Cir.1995) (“In this circuit, we apply a reasonableness standard in determining

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whether the government's position was substantially justified for purposes of the EAJA.”). The

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Court recognizes that had Plaintiff not filed this case challenging the ALJ’s decision, her attempt

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to secure benefits would now be at an end. Cases where a court outright denied EAJA fees under

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the “special circumstances” rationale are distinguishable, as the Court finds counsel’s negligence

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to be less egregious than in those cases. See, e.g., Webb v. Astrue, 525 F.Supp.2d 1329 (N.D.

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Ga. 2007) (denying attorney's fees where the “origin of the litigation was plaintiff's own

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negligence.”); Wimpy v. Barnhart, 350 F.Supp.2d 1031, 1034–36 (N.D. Ga. 2004) (same);

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McKay v. Barnhart, 327 F. Supp. 2d 263 (S.D.N.Y. 2004) (denying fees where the plaintiff

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obtained the same benefit offered by defendant in stipulation to remand, as plaintiff’s rejection
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was unreasonable and remand was the court's ultimate remedy); Bryant v. Apfel, 37 F.Supp.2d

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210, 213–14 (E.D.N.Y. 1999) (attorney's failure to produce crucial medical records to the court

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skewed the outcome); Dubose v. Pierce, 579 F. Supp. 937 (D. Conn. 1984) (attorney

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misconstrued his employment status to the court).

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Instead, Plaintiff’s case compares favorably to McCullough v. Astrue, 565 F.Supp.2d

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1327 (M.D. Fl. 2008), and Meyler v. Commissioner of Social Sec., 2008 WL 2704831 (D.N.J.

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July 7, 2008). In the former case, the Court agreed with defendant that had plaintiff’s counsel not

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negligently omitted certain evidence before the ALJ, a review by the district court would not have

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been warranted. McCullough, 565 F.Supp.2d at 1330. However, plaintiff was represented by

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different counsel in the action before the ALJ, so the court would not punish plaintiff and his

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current counsel for mistakes of the former attorney. Id. In Meyler, the district court confronted a

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situation where plaintiff’s counsel flagrantly violated local rules and otherwise did not display

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“appropriate professional behavior.” 2008 WL 2704831 at *2. The court stated that “[d]espite

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the persistent pattern of misconduct by [] counsel . . . special circumstances [do not] exist to

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justify a complete denial of attorney's fees.” Id. Here, like McCullough, Plaintiff’s Counsel took

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on this case to correct errors of another, and like Meyler, Counsel’s efforts won Plaintiff another

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chance to obtain benefits, despite the inappropriate professional behavior. Thus, an outright

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denial of benefits is unwarranted.

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However, it does appear that a reduction in fees is appropriate, given Counsel’s

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negligence. The court in Meyler reduced the fees granted by discounting all hours expended on

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the offending filings. Id. at *3. Here, the billing statement submitted asserts that after the

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administrative record was filed in June of 2018, Counsel downloaded the documents and began

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preparing the motion for summary judgment. (ECF No. 22–2.) As the docket indicates, though,

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Counsel was sanctioned for failing to comply with the scheduling order, and the motion for

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summary judgment was not submitted until February of 2019––over seven months after the

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administrative transcript was filed––with no requests for extension of time requested. (ECF Nos.

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14, 15.) Importantly, Counsel for Defendant submitted a declaration stating that when she

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contacted Plaintiff’s Counsel in December of 2018 about the delay, Plaintiff’s Counsel said the
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case had “fallen off his radar.” (ECF No. 24–1 at ¶ 7.) Plaintiff’s Counsel stated he had a draft

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ready on August 8, 2018, but had never finalized it. (Id.) Plaintiff did not reply to this

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declaration, so the Court considers Defense Counsel’s recollections as accurate. It appears

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counsel did not work on the case between October and December of 2018, and began finalizing

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the motion in January of 2019. Thus, it appears that Plaintiff’s Counsel has submitted

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unreasonable billing statements for the period between August 8 and January of 2019; the Court

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discounts these line items in their entirety. See 28 U.S.C. § 2412(d)(1)(C) (“The court, in its

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discretion, may reduce the amount to be awarded pursuant to this subsection, or deny an award, to

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the extent that the prevailing party during the course of the proceedings engaged in conduct which

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unduly and unreasonably protracted the final resolution of the matter in controversy.”); Meyler,

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2008 WL 2704831 at *3 (reducing fee award for time spent on filings that the court found to

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contain “ad hominem attacks and offensive language”, which required striking the filings and

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resulted in a delay in the proceedings). This results in a reduction of $3,093.98 (for line items

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from August 21, 2018, through October 29, 2018).

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Further, the Court deducts the following time spent on purely clerical or secretarial tasks

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(such as receiving and preparing files; receiving routine case e-mails; and reviewing routine

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notices and filings, such as answers, notices of appearance, and orders granting pro hac vice

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applications): 0.2 hours reviewing email of documents (November 8, 2017) for $26; 0.3 hours

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downloading administrative record (June 25, 2018) for $60.23; and 0.2 hours of duplicative

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paralegal time (January 28, 2019) for $26. Kirk v. Berryhill, 244 F. Supp. 3d 1077, 1084 (E.D.

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Cal. 2017) (“[C]osts associated with clerical tasks are typically considered overhead expenses

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reflected in an attorney's hourly billing rate, and are not properly reimbursable.” (citing Missouri

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v. Jenkins, 491 U.S. 274, 288 n.10, (1989)) and Nadarajah v. Holder, 569 F.3d 906, 921 (9th Cir.

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2009)); see also Samuel v. Barnhart, 316 F. Supp. 2d 768, 782–83 (E.D. Wis. 2004) (reducing

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time on billing statement where attorney and paralegal appeared to bill for the same service).

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Thus, a total reduction of $3,206.21 is in order. The remainder of the fees, as well as all

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expenses, are consistent with the result obtained, given that Plaintiff obtained a favorable

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judgment remanding the case for further administrative proceedings. See Costa v. Comm'r of
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Soc. Sec. Admin., 690 F.3d 1132, 1136 (9th Cir. 2012) (reminding that in assessing EAJA

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requests, a court should defer to counsel’s “professional judgment as to how much time he was

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required to spend on the case.”).

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Finally, the Court notes that Plaintiff has executed an assignment of EAJA fees to

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Plaintiff’s Counsel. (ECF No. 24-3.) However, the EAJA award must be made by this Court to

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Plaintiff, and not to counsel. See Astrue v. Ratliffe, 130 S. Ct. 2521 (2010). Nevertheless, if the

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government determines that Plaintiff does not owe a federal debt that qualifies for offset, payment

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may be made in the name of Plaintiff’s Counsel.

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ORDER

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Accordingly, for the reasons outlined above, IT IS HEREBY ORDERED that:

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1. Plaintiff’s motion for attorneys’ fees and expenses under the EAJA (ECF No. 22) is

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GRANTED IN PART; and

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2. Plaintiff is awarded attorneys’ fees and expenses in the total amount of $4,274.32. If

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the government determines that Plaintiff does not owe a federal debt that qualifies for

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offset, payment may be made in the name of Plaintiff’s Counsel.

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IT IS SO ORDERED.
Dated: July 17, 2019

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