Allen v. Astrue

Filing 29

ORDER granting 23 Motion for an Award of Attorney Fees by Judge Christine M. Arguello on 7/15/13.(dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Christine M. Arguello

Civil Action No. 12-cv-00225-CMA
ANGELA J. ALLEN,
Plaintiff,
v.
MICHAEL J. ASTRUE, Commissioner of Social Security Administration,
Defendant.

ORDER GRANTING MOTION FOR ATTORNEY FEES
PURSUANT TO THE EQUAL ACCESS TO JUSTICE ACT

This matter is before the Court on Plaintiff’s Motion for an Award of Attorney
Fees Under the Equal Access to Justice Act (Doc. # 23). The Court has jurisdiction
under 28 U.S.C. § 2414. For the reasons stated below, Plaintiff’s motion is granted.
I. BACKGROUND
The facts and procedural history of this case are set out at length in the
Administrative Record (Doc. # 5-3), and the Court’s oral ruling (Doc. # 22). A short
recap follows.
Plaintiff’s application for Social Security disability benefits was heard before an
Administrative Law Judge (“ALJ”) on July 28, 2010. (Doc. # 1, ¶ 3.) The ALJ ruled that
Plaintiff was not entitled to disability benefits. (Id.) After the Appeals Council affirmed
the decision of the ALJ (Id., ¶ 6), Plaintiff appealed to this Court. (Id.) In a November 9,

2012 oral ruling, this Court reversed the ALJ’s decision and remanded for further
proceedings. (Doc. # 22 at 19.) The Court found that the Commissioner did not
adequately address the conflict between the vocational expert’s testimony and the
Dictionary of Occupational Titles. (Id.)
After issuing its order, the Court entered judgment in favor of Plaintiff on
November 14, 2012. (Doc. # 21.) Plaintiff filed an application requesting attorney
fees under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412. (Doc. # 23.)

The Commissioner responded on February 26, 2013 (Doc. # 26), and Plaintiff replied
on March 28, 2013 (Doc. # 28).
II. DISCUSSION
The EAJA provides for an award of attorney fees to a prevailing party in a civil
action brought against the United States unless the court finds that the position of the
United States was substantially justified or special circumstances make an award
unjust. 28 U.S.C. § 2412(d)(1)(A). “The initial estimate of a reasonable attorney’s fee
is properly calculated by multiplying the number of hours reasonably expended on the
litigation times a reasonable hourly rate.” Blum v. Stenson, 465 U.S. 886, 888 (1984)
(citing Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)). “A request for attorney’s fees
should not result in a second major litigation.” Hensley, 461 U.S. at 437. “Ideally, of
course, litigants will settle the amount of a fee.” Id. “Where settlement is not possible,
the fee applicant bears the burden of establishing entitlement to an award and
documenting the appropriate hours expended and hourly rates.” Id. In making
a determination regarding the reasonableness of the fee request, the Court will

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“examine hours allotted to specific tasks.” Ramos v. Lamm, 713 F.2d 546, 554 (10th
Cir. 1983), overruled on other grounds by Pennsylvania v. Delaware Valley Citizens’
Council, 483 U.S. 711 (1987).
In the instant case, Plaintiff requests an award of $11,980.69 in attorney fees.
(Doc. # 28 at 2 n.1.) This amount represents the total number of hours incurred in
Plaintiff’s case, 72.3 hours, 1 multiplied by the hourly rate agreed upon by the parties,
which is $182.12, and reduced by ten percent (Doc. # 23, ¶ 5). In support of this
motion, Plaintiff’s attorney, Gordon Williams (“Mr. Williams”), submitted an affidavit that
documented his time records. (Doc. # 23-2 at 4.) Although Plaintiff has met the
threshold conditions for an award of fees under EAJA, the Court must still determine
what fee is reasonable. INS v. Jean, 496 U.S. 154, 161 (1980). The Commissioner
does not oppose an award of EAJA fees, or the rate proposed, but asserts that the
number of hours claimed by Mr. Williams is not reasonable. (Doc. # 26 at 2–6.)
The Commissioner asserts that the typical number of hours spent before the
district court on a Social Security disability claim is between twenty and forty hours.
(Doc. # 26 at 3 (citing Williams v. Astrue, No. 06-4027-SAC, 2007 WL 2582177, at *1–2
(D. Kan. Aug. 28, 2001); Pribek v. Sec’y, Dep’t of Health & Human Servs., 717 F. Supp.
73, 75–77 (W.D.N.Y. 1989); Terry v. Bowen, 711 F. Supp. 526, 527 (D. Ariz. 1989);
Spuil v. Bowen, 691 F. Supp. 302, 306–07 (M.D. Fla. 1988)).) Although some social
security cases may require less time, an expenditure of time above forty hours in a
social security disability claim is not atypical. See, e.g., Brodeur v. Astrue, No. 09-cv1

Plaintiff’s counsel noted that 1.2 hours listed in his itemized billing on June 10, 2012 was
included in error. (Doc. # 28 at 2 n.1.)
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00045-WYD, 2010 WL 4038611, at *4 (D. Colo. Oct. 14, 2010) (finding 46.09 hours
reasonable); Carlson v. Astrue, 500 F. Supp. 2d 1174, 1177, 1181 (S.D. Iowa 2007)
(53.25 hours); Wirth v. Barnhart, 325 F. Supp. 2d 911, 914 (E.D. Wis. 2004) (61 hours);
Lechner v. Barnhart, 330 F. Supp. 2d 1005, 1012 (E.D. Wis.2004) (45.5 hours); Palmer
v. Barnhart, 227 F. Supp. 2d, 975, 978 (N.D. Ill. 2002) (48.2 hours); Elzey v. Chater, 927
F. Supp. 1436, 1437 (D. Kan. 1996) (45 hours); Tavarez v. Heckler, 610 F. Supp. 1059,
1064 (S.D.N.Y. 1985) (100 hours). 2
Having reviewed Mr. Williams’s time records, and noted that he reduced the
hours he billed in Plaintiff’s case by ten percent and deleted the 1.2 hours that he
erroneously included in his original estimate, the Court finds that the 72.3 hours he
spent on this appeal of the Commissioner’s denial of disability benefits in the federal
district court are not unreasonable. 3 See Hensley v. Eckerhart, 461 U.S. 424, 433
(1983) (“A request for attorney’s fees should not result in a second major litigation.”).
Additionally, because Mr. Williams researches when he writes, it is not unreasonable

2

The Commissioner also cites to Grendel’s Den, Inc. v. Larkin, 749 F.2d 945, 954–55 (1st Cir.
1984) to contend that “[t]he government is entitled to expect some additional efficiency from
experienced or able counsel.” The Court disagrees that this non-Social Security case is on
point. Grendel’s Den., Inc. dealt with violations of the Establishment Clause of the First
Amendment, Due Process and Equal Protection Clauses of the Fourteenth Amendment, federal
antitrust laws, and Massachusetts constitution and laws.” 749 F.2d at 948. Contrastingly, here,
Plaintiff filed with the Social Security Administration to apply for disability benefits. (Doc. # 1,
¶ 1.)
3

The Commissioner acknowledges that “oral argument was held and that one of the issues
raised by Plaintiff – his step five argument based on Hackett v. Barnhart, 395 F.3d 1168 (10th
Cir. 2005) - was, if not novel, more complex than many issues raised in a Social Security brief.”
(Doc. # 26 at 4.)
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for him to block bill the time spent on researching and writing. Thus, the Court grants
Plaintiff’s motion for $11,980.69 in attorney fees and $369.80 in costs. 4
Finally, although Plaintiff requests that the fee award be paid to counsel
(Doc. # 23-1), “the clear language of the [EAJA] provides that attorney’s fees are paid
to the prevailing party, not the attorney.” Manning v. Astrue, 510 F.3d 1246, 1254 (10th
Cir. 2007).
III. CONCLUSION
Accordingly, it is ORDERED that Commissioner pay Plaintiff $11,980.69 in fees
and $369.80 in costs under the EAJA, deliverable to Plaintiff.
DATED: July

15

, 2013
BY THE COURT:

_______________________________
CHRISTINE M. ARGUELLO
United States District Judge

4

As the Commissioner asserts, filing and transcript fees are “costs.” (Doc. # 26 at 8 (citing 28
U.S.C. § 1920).)
5