VICK v. Astrue

Filing 23

ORDER granting 19 Motion for Attorney Fees. Petitioner is awarded attorney fees in the amount of $5,557.47 and costs in the amount of $550.00. Signed by Judge Candy W Dale. (klw)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

PAULA A. VICK,
Case No. 1:10-cv-00562-CWD
Petitioner,
MEMORANDUM DECISION AND
ORDER

v.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Respondent.

INTRODUCTION
Before the Court is Petitioner’s motion for attorney fees under the Equal Access to
Justice Act. Petitioner requests $5,557.47 in attorneys’ fees and $550.00 in court costs
payable from the Judgment fund. (Dkt. 19, 22). Respondent objects to the award of fees,
contending that the amount is unreasonable and the amounts requested exceed the
statutory maximum rate.
The parties have briefed the motion and it is now ripe for the Court’s
consideration. Having reviewed the record herein, the Court finds that the facts and legal
arguments are adequately presented in the briefs and the record. Accordingly, in the
interest of avoiding delay, and because the Court conclusively finds that the decisional
process would not be significantly aided by oral argument, the motion will be decided on
the record before this Court without oral argument. Dist. Idaho L. Rule 7.1(d).
MEMORANDUM DECISION AND ORDER - 1

BACKGROUND
Petitioner appealed the denial of her social security disability benefits application
to this Court on November 15, 2010. After submission of the briefs, this Court issued its
memorandum decision and order on March 20, 2012, granting Petitioner’s petition for
review and remanding the matter to the Commissioner for further proceedings.
Judgement was entered against the Respondent under “sentence four” of 42 U.S.C. §
405(g).
On June 18, 2012, Petitioner’s attorney requested $5,174.98 in EAJA fees, which
reflected 28.58 hours at an hourly rate of $181.07. Petitioner further requested $550.00,
reflecting the federal court filing fee and the pro hac vice fee, payable from the Judgment
Fund. Petitioner itemized the hours billed as follows:
DATE
11/10/2010

ITEMIZATION OF HOURS
(CEB)

11/12/2010
11/23/2010
12/13/2010
03/25/2011

(DYI)
(DYI)
(CEB)
(DSJ)

03/26/2011
03/29/2011
03/30/2011
06/09/2011

(DSJ)
(CEB)
(DSJ)
(DSJ)

Dictated letter to client re: appeal/
Dictated complaint
Review complaint
Review pro hac vice application/file with Court
Dictated letters serving summons and complaint
Review of Transcript/Statement of Facts/
Medical research
Research and Draft Arguments
Review and Edit Draft Brief
Final Revisions of Brief
Prepare EAJA petition

TOTAL FEDERAL COURT HOURS

HOURS

0.75
0.25
0.33
0.50
11.25
12.25
1.50
0.50
1.25
28.58

=================================================================
TOTAL FEDERAL COURT HOURS (Daniel S. Jones)…….…..…..……….....25.25
TOTAL FEDERAL COURT HOURS (Charles E. Binder)……………………….2.75
TOTAL FEDERAL COURT HOURS (Debra Y. Irish)………………………......0.58
=================================================================

MEMORANDUM DECISION AND ORDER - 2

Respondent objected to the reasonableness of the claimed fees on two grounds.
First, Respondent objected to Petitioner’s calculation of the applicable statutory
maximum rate. Respondent contends the rate in 2010 was $175.06, and in 2011 was
$180.59. Therefore, Respondent argues the $181.59 rate is incorrect. Second, Respondent
contends that 28.58 hours was excessive for a routine matter, and were therefore not
reasonably expended. Further, Respondent objects to the multiple attorneys assigned to
this matter, contending that it necessarily resulted in duplication of effort for a routine
disability matter. Respondent objects to the billing increments used, which exceed .10
hours, and the block billing. And finally, Respondent argues that any proposed order for
an award of EAJA fees must state that the fees will be awarded to Petitioner, not
Petitioner’s attorney. Respondent did not object to Petitioner’s requests for
reimbursement of the filing and pro hac vice fees.
In response, Petitioner conceded that she calculated the hourly rate incorrectly,
and agreed that the hours in 2010 should be set at $175.06, while those hours for 2011
and 20121 should be set at $180.59. Petitioner refuted Respondent’s other arguments,
generally citing a lack of any explicit critique of the hours expended. Petitioner further
requested an additional 2.25 hours to prepare the fee request and draft the reply brief in
this matter, for total fees requested of $5,557.47.

1

Hourly rates for 2012 have not yet been established.

MEMORANDUM DECISION AND ORDER - 3

ANALYSIS
The EAJA provides for the award of attorney’s fees to a party that prevails against
the United States in a proceeding for review of an agency action, unless the court finds
“that the position of the United States was substantially justified or that special
circumstances make an award unjust.” 28 U.S.C. § 2412(d)(1)(A). Respondent does not
argue that the agency’s position was substantially justified but argues that the amount of
fees Petitioner requests is not reasonable. See id. at § 2412(d)(2)(A). The Court applies
the “lodestar” method to determine what constitutes a reasonable attorney’s fee in Social
Security matters. Costa v. Comm’r of Soc. Sec. Admin., ___ F.3d ___, 2012 WL 3631255
(9th Cir. Aug. 24, 2012).
Petitioner’s fees were reasonable for a routine case. Petitioner spent 30.83 hours,
which included the time spent briefing the fee motion, on Petitioner’s case. Respondent
cites Harden v. Comm’r, 497 F.Supp.2d 1214, 1215 (D. Or. 2007), which suggested that
a range of 20-40 hours is a reasonable amount of time to spend on a social security case
that does not present particular difficulty.2 Petitioner’s requested hours fall smack in the
middle of the “reasonable” range, and Respondent fails to explain how the expenditure of
slightly over 30 hours is “unreasonable” when it falls in the middle of the suggested
range.3 Furthermore, Respondent fails to identify any hours that it finds were “excessive,
redundant, or otherwise unnecessary,” instead leaving the Court to guess. For instance,
2

Recently, in Costa, the Court of Appeals for the Ninth Circuit rejected the application of a de facto policy of
limiting social security claimants to 20-40 hours in “routine cases.” Costa, 2012 WL 3631255 at *3. In Costa, the
Ninth Circuit reversed the lower court, and ordered fees awarded in the amount of $10,544.72. Id. at *4.
3
The Court further finds Respondent’s reliance upon Justice Sotomayor’s comments in Astrue v. Ratliff, 130 S.C.t
2521, 2530 (2010), that EAJA fee awards average $3,000 to $4,000 per case unpersuasive. Justice Sotomayor’s
comments referred to cases decided prior to 2006.

MEMORANDUM DECISION AND ORDER - 4

Respondent does not argue that the 11.25 hours spent reviewing the 485 page transcript
was unreasonable. Rather, Respondent generically asserts that, overall, the 30 hours was
unreasonable. Without more, the Court declines to engage in second guessing counsel on
the time spent with preparation of what the Court considered a well-reasoned,
informative, and well-argued brief.
Second, it does not appear that the three attorneys duplicated efforts in this case.
Debra Irish was hired as local counsel, and as such, it was her obligation to ensure that
filings in the Court met the requirements of this Court’s local rules. Her time, at just over
.5 hours, appears reasonable. Charles Binder’s work appears confined to drafting letters
to the client and reviewing the work of his associate to prepare the final brief. Mr.
Binder’s work does not appear to be clerical in nature. Dictation is distinctly different
than physically typing the dictated work. Mr. Binder could have used the word “drafted”
interchangeably with dictated. The Court can discern no “clerical” work included in Mr.
Binder’s time. An attorney had to draft the letters and the complaint, either by using word
processing software himself, or dictation. The bulk of the work---reviewing the transcript
and drafting the briefs---was completed by Daniel Jones over the course of two long
days. The Court can find no duplication of effort reflected in the billing, other than
Respondent’s suggestion that having three attorneys somehow automatically resulted in
duplication of efforts.
Third, Respondent takes issue with the block billing and the apparent billing
increment of .25 hours, both of which the Court finds reasonable in this case. Respondent
primarily contends that the 23.50 hours billed over two days to review the transcript and
MEMORANDUM DECISION AND ORDER - 5

prepare the brief should not have been “block billed.” Mr. Jones labored 12 hour days
over the span of two days, which, although perhaps exhausting, is certainly achievable by
an attorney wishing to accomplish a task uninterrupted by other work and in as few days
as practical. The Court is not concerned that Mr. Jones chose to spend his time in that
manner. And the Court can see no discernible benefit had Mr. Jones broken out his time
in increments, considering he spent his time reviewing a 485 page transcript, and then
researching and writing a brief. No benefit would be gained if Mr. Jones had informed
the Court how much time he spent researching a particular issue, for example. And
Respondent fails to inform the Court how much the hours should be reduced. In any
event, in the Court’s own experience reviewing transcripts, researching routine social
security issues, and reviewing attorneys’ briefs, the time spent as a whole appears
reasonable considering the quality of the research and briefing submitted to the Court.
Furthermore, the Social Security Commissioner itself has stated in the past that
quarter-hour increments are allowable if they are reasonably applied. Willis v. Barnhart,
2002 WL 31779907 *3 (N.D. Ill. Dec. 11, 2002). Because Mr. Jones spent the bulk of
two days preparing the brief, an increment of more than .10 would have little impact if all
of the work was completed in a block of time. For example, if work was billed in .25
increments over the course of multiple days for the same task, the Court could understand
how the billing could become inflated compared to the use of .10 time increments. But
here, the attorneys, including Mr. Jones, completed their tasks on the same date,

MEMORANDUM DECISION AND ORDER - 6

presumably in the same uninterrupted block of time.4 Thus, the use of .25 time
increments had a minimal effect.

CONCLUSION
The record reflects that Petitioner’s attorneys conducted an adequate review of this
matter and expended a reasonable and appropriate amount of time and resources
prosecuting this case. The Court therefore finds that Petitioner’s request for EAJA fees is
reasonable and well documented. For the foregoing reasons, Petitioner will be awarded
attorney fees in the amount of $5,557.47 and costs in the amount of $550.00. The
attorney fees are awarded directly to Petitioner, and not to her attorneys. 28 U.S.C. §
2412; Astrue v. Ratliff, 130 S.Ct. 2521, 2527 (2010).

4

The Court knows of no requirement that an attorney specify the exact time he completed his or her task. An
attorney does not need, for example, to inform the Court that a task comprising .1 of an hour on a particular date
was completed between 9:00 a.m. and 9:06 a.m.

MEMORANDUM DECISION AND ORDER - 7

ORDER
Having considered Petitioner’s Motion for 406(b) Attorney Fees, (Dkt. 19),
IT IS HEREBY ORDERED that the request for attorney’s fees in the amount of
$5,557.47 and costs in the amount of $550.00 is GRANTED.

September 24, 2012

MEMORANDUM DECISION AND ORDER - 8