Alam v. Commissioner of Social Security Administration

Filing 48

ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION FOR ATTORNEY'S FEES re 40 MOTION for Attorney Fees in a Social Security case, under the Equal Access to Justice Act filed by Roshan Alam. Signed by Judge Alsup on July 7, 2011. (whalc1, COURT STAFF) (Filed on 7/7/2011)

Download PDF
1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE NORTHERN DISTRICT OF CALIFORNIA 8 9 ROSHAN ALAM, 11 For the Northern District of California United States District Court 10 12 13 No. C 07-02778 WHA Plaintiff, v. 14 MICHAEL J. ASTRUE, Commissioner of Social Security, 15 ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION FOR ATTORNEY’S FEES Defendant. / 16 INTRODUCTION 17 18 In this social security appeal, plaintiff Roshan Alam moves for an award of attorney’s fees 19 and expenses under the Equal Access to Justice Act. For the following reasons, plaintiff’s motion 20 is GRANTED IN PART WITH RESPECT TO $5,182.66 of attorney’s fees and expenses and DENIED 21 IN PART with respect to the remainder of plaintiff’s request. 22 STATEMENT 23 Plaintiff Roshan Alam was diagnosed with affective mood disorder in 1997 and was 24 granted Supplemental Security Income in March of that year. In October 2005, following a 25 “continuing disability review,” the Social Security Administration discontinued her benefits as of 26 April 2004. Plaintiff exhausted her administrative appeals and filed the instant action in 27 May 2007, seeking review of the SSA’s discontinuation of her benefits. In October 2007, the 28 parties stipulated and the Court ordered that the action should be remanded to the Administrative 1 Law Judge for further findings, because the entire administrative record, including the ALJ’s 2 order, had been lost. On remand, the ALJ partially reconstructed the record and again issued a 3 decision discontinuing plaintiff’s benefits as of April 2004. 4 The government filed an answer in December 2010, more than three years after the 5 complaint was filed. Plaintiff moved for summary judgment. The government moved to remand 6 again for yet additional proceedings to further reconstruct the lost administrative record. The 7 undersigned granted the government’s motion in February 2011, reversing the ALJ’s decision and 8 remanding the action for more record reconstruction and administrative proceedings. Judgment 9 was entered concurrently for plaintiff. In June 2011, plaintiff filed the instant motion for attorney’s fees, which has been fully briefed. Plaintiff seeks $5,812.88 in attorney’s fees under 11 For the Northern District of California United States District Court 10 the Equal Access to Justice Act, 28 U.S.C. 2412(d). 12 ANALYSIS 13 1. 14 The EAJA provides in pertinent part that “a court shall award to a prevailing party . . . fees POSSIBILITY OF FEE AND EXPENSE AWARD UNDER THE EAJA. 15 and other expenses . . . incurred by that party in any civil action . . . including proceedings for 16 judicial review of agency action, brought . . . against the United States . . . unless the court finds 17 that the position of the United States was substantially justified or that special circumstances 18 make an award unjust.” 28 U.S.C. 2412(d)(1)(A). In order for a fee award to be granted, (1) a 19 party must “prevail” in a civil action, and (2) the government’s position in the action, including 20 the underlying administrative proceedings, must have been “not substantially justified.” 21 A party “prevails” for the purposes of the EAJA if the denial of its benefits is reversed and 22 remanded, regardless of whether benefits ultimately are awarded. Gutierrez v. Barnhart, 23 274 F.3d 1255, 1257 (9th Cir. 2001). The government bears the burden of proving that its 24 conduct was substantially justified. Our court of appeals has held that this standard is one of 25 reasonableness, and the government must establish that its conduct “had a reasonable basis both 26 in law and fact.” See Sampson v. Chater, 103 F.3d 918, 921 (9th Cir. 1996). 27 28 2 1 2 A. Whether Plaintiff Prevailed in a Civil Action. In February 2011, this action was remanded to the ALJ for further reconstruction of the 3 lost record (Dkt. No. 33). After a request for clarification by the government, the order was 4 clarified in March 2011, reversing the ALJ’s most recent denial of benefits (Dkt. No. 35). 5 Because plaintiff secured a reversal of the ALJ’s order and a remand of the action, plaintiff 6 “prevailed” in a civil action for purposes of the EAJA. Gutierrez, 274 F.3d at 1257. 7 8 9 B. Whether the Government’s Conduct Was Substantially Justified. The government bears the burden of proving that its conduct, both in the proceedings before the ALJ underlying this action, and in this action itself, were substantially justified. The government has failed to carry this burden. Plaintiff argues that the government took inconsistent 11 For the Northern District of California United States District Court 10 positions with respect to the sufficiency of the administrative record upon which the ALJ based 12 its most recent denial and that this makes the government’s position “not substantially justified” 13 (Br. 3–4). 14 The government has not presented any evidence or argument that its position was 15 substantially justified. The government made no mention of plaintiff’s contention that its position 16 was not substantially justified in its opposition to the instant motion, arguing only that plaintiff’s 17 fee calculations are too high. The government has conceded this argument to plaintiff in addition 18 to having failed to carry its positive burden. This order therefore finds that the government’s 19 position was not substantially justified for purposes of the EAJA. Fees and costs may therefore 20 be awarded to plaintiff. The parties, however, disagree on the proper amount for such an award. CALCULATING THE PROPER FEE AWARD. 21 2. 22 Fees awarded pursuant to the EAJA must be reasonable. The party requesting the fee 23 award bears the burden of proving that its request is reasonable. Any task that would not be 24 billed to a client may not be billed to an adversary under the EAJA. “Excessive, redundant, or 25 otherwise unnecessary” hours must be excluded. See Hensley v. Ekerhart, 461 U.S. 424, 437 26 (1983); Atkins v. Apfel, 154 F.3d 986, 988 (9th Cir. 1998) (applying Hensley to the EAJA). 27 Clerical tasks, even when performed by an attorney or paralegal, may not be billed to an 28 adversary. Missouri v. Jenkins, 491 U.S. 274, 288 n.10 (1989). Any fees awarded pursuant to the 3 1 EAJA must be paid to the plaintiff, not to the plaintiff’s attorney. Astrue v. Ratliff, 2 130 S. Ct. 2521, 2527–28 (2010). 3 This order finds that plaintiff’s attorney has included some clerical tasks in his 4 calculations. This order notes that plaintiff’s attorney has written his time entries in such a way 5 that certain clerical tasks cannot be easily extracted from the total hours spent on a group of tasks. 6 This order therefore divides the total hours of such entries by the number of tasks listed and 7 subtracts one fraction per clerical task. This order determines whether a task is clerical or not 8 from the attorney’s description and any explanation in the briefs. The following table lists only 9 those time entries that are modified; unchanged entries are not listed. Time Entries for which Fees Will Not Be Awarded, in Whole or in Part 11 Date For the Northern District of California United States District Court 10 12 Plaintiff’s Attorney’s Entry (Br. 5–6) New Hours Calculation Reason Fees Denied 04/15/2008 send exhibits, other docs to appeals council Sending documents is a clerical. 0.0 05/15/2009 tel from Rose-Chavez re notice of new hrg; update file status [] Faxes to RoseChavez Phone calls about new hearings are clerical. Updating file status is clerical. Faxing, as plaintiff’s attorney described it, is not clerical. 0.43 (1.3 / 3 = 0.43) 09/13/2010 receive transcript, answer, eval completeness, legibility, etc; calendar motion, Email to RoseChavez; Consider consent mag judge Receiving a transcript and answer are clerical. Calendaring a motion is clerical. The remaining tasks are not clerical. 0.9 (1.5 / 5 = 0.3; 0.3 * 3 = 0.9) 10/12/2010 update status, check cf. New sched order; now “WHA” Updating and checking case status are clerical. 0.0 01/12/2011 check def’s dl on oppo, finish emt Leo M. Checking a docket list is clerical. 0.7 (1.4 / 2 = 0.7) 01/12/2011 13 receive def’s xmo, calendar response Receiving documents and calendaring pleadings are clerical. 0.0 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 1 01/13/2011 receive ct order (as osc) from WHA re sched for reply, recalendar dl, work Receiving documents and calendaring pleadings are clerical. “Work” is potentially not clerical. 0.2 (0.6 / 3 = 0.2) 03/11/2011 receive order Receiving documents is clerical. 0.0 03/31/2011 update status; eval order, jmt; calendar appeal, post-remand; emt Rose-Chavez Updating status and calendaring are clerical. 0.35 (0.7 / 4 = 0.175; 0.175 * 2 = 0.35) 04/01/2011 update status, receive email from RoseChavez, return email; receive def’s subst atty, review order revision Updating status is clerical. 0.06 (0.1 / 3 = 0.03; 0.03 * 2 = 0.06) 2 3 4 5 6 7 8 9 11 This order finds that two hours to prepare billing records for the instant motion is For the Northern District of California United States District Court 10 12 reasonable, regardless of the content of the motion in comparison to those plaintiff’s attorney has 13 filed in other actions. This order further finds that five hours spent opposing remand was 14 reasonable when plaintiff did so, because it would have been advantageous to plaintiff to have the 15 ALJ’s order reversed. Finally, this order finds the time spent preparing the instant motion to be 16 compensable and reasonable. This order will therefore add 2.5 hours of time to the total 17 at 2010/2011 rates. 18 * * * 19 The total fee award, as adjusted, is as follows: 20 22 23 Year Rate New Total 2007 $166.46 / hour $166.46 (unchanged) 2008 21 $172.85 / hour 1.5 * $172.85 = $259.28 2009 $172.24 / hour 0.43 * $172.24 = $74.06 24 2010 $175.06 / hour 12.6 * $175.06 = $2,205.76 25 2011 $175.06 / hour (no rate published yet) 11.65 * $175.06 = $2,039.45 2011 (EAJA motion) $175.06 / hour + $437.65 26 27 Total $5,182.66 28 5 1 2 CONCLUSION For the foregoing reasons, plaintiff’s motion is GRANTED IN PART WITH RESPECT TO 3 $5,182.66 of attorney’s fees and expenses and DENIED IN PART with respect to the remainder of 4 plaintiff’s request. Defendant shall pay the award amount directly to plaintiff. 5 6 IT IS SO ORDERED. 7 8 Dated: July 7, 2011. WILLIAM ALSUP UNITED STATES DISTRICT JUDGE 9 11 For the Northern District of California United States District Court 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.


Why Is My Information Online?