Velon v. Berryhill
Filing
33
DOCUMENT FILED IN ERROR: WILL REFILE. ORDER granting 27 Motion for Attorney Fees(Written Opinion) Signed by Magistrate Judge Katherine M. Menendez on 8/21/2018. (LCC) Modified on 8/21/2018 (kt).
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Tammy Jean Velon,
Case No. 16-cv-01319-WMW-KMM
Plaintiff,
REPORT AND
RECOMMENDATION
v.
Nancy A. Berryhill,
Acting Commissioner of Social Security,
Defendant.
Gary A. Ficek, Ficek Law Office, PC, 4650 Amber Valley Parkway, Suite 2, Fargo,
ND 58104, counsel for plaintiff
Bahram Samie, United States Attorney’s Office, 300 S 4th Street, Suite 600,
Minneapolis, MN 55415, counsel for defendant
This matter is before the Court on Plaintiff Tammy Jean Velon’s Motion for
Attorney Fees following an order granting her motion for summary judgment and
remanding the matter for further proceedings. Mot., ECF No. 27; Order, ECF No.
25. For the following reasons, the Court grants Ms. Velon’s Motion for Attorney Fees
as modified herein.
BACKGROUND
Ms. Velon applied for disability benefits in 2013. R. & R., ECF 22 at 1. After
her claim was denied at the agency level, she appealed to this Court for relief in 2016.
See Compl., ECF 1. This Court recommended granting Ms. Velon’s motion for
summary judgment and remanding the matter for further proceedings. R. & R. at 18.
Specifically, this Court found that the Administrative Law Judge (“ALJ”) erred in
weighing the evidence and drafted an inconsistent and unworkable Residual
Functioning Capacity (“RFC”) for Ms. Velon. Id. at 12, 14, 17. The district court
adopted this Court’s recommendation. Order at 1.
1
Ms. Velon now brings this Motion for Attorney Fees pursuant to the Equal
Access to Justice Act (“EAJA”), claiming that she is the prevailing party and that the
government’s position was not substantially justified. Mot. at 1-2. She makes two
arguments as to why the government was not substantially justified: (1) the
Commissioner’s failure to object to the Report and Recommendation (“R&R”)
recommending summary judgment constitutes tacit admission of a lack of substantial
justification, and (2) the Commissioner’s position was not substantially justified
precisely because the case was remanded due to insufficient evidence supporting that
position. Id.; see also R. & R. at 5. Ms. Velon claims a total of $8,747.54, asserting that
her attorney billed 43.8 hours at a rate of $190 per hour, paralegals billed 2.7 hours at
a rate of $75 per hour, and that her total costs and expenses were $223.04. Mem. in
Supp. at 3-4, ECF 28; Ficek Aff. Attach. A, ECF No. 29.
The Commissioner opposes the request for fees on two grounds. First, she
alleges that while Ms. Velon was the prevailing party, the government was
substantially justified in relying on the ALJ’s determinations because both of the
issues leading to remand were susceptible to a “genuine dispute,” such that
“reasonable people could differ as to” their appropriate resolution. Resp. at 1-2, ECF
No. 31 (citing Pierce v. Underwood, 487 U.S. 552, 565 (1988); Welter v. Sullivan, 941 F.2d
674, 676 (8th Cir. 1991)). Alternatively, the Commissioner argues that even if
Ms. Velon is entitled to fees, the amount she seeks here is excessive. Id. at 1.
Because the Court concludes Ms. Velon is entitled to fees based on her second
argument, the Court declines to reach her argument that the Commissioner’s failure
to object to remand constitutes tacit acknowledgement of a lack of justification.
LEGAL STANDARD
The EAJA provides, in relevant part, that:
Except as otherwise specifically provided by statute, a judgment for
costs, . . . but not including the fees and expenses of attorneys, may be
awarded to the prevailing party in any civil action brought by or against
the United States or any agency or any official of the United States acting
in his or her official capacity in any court having jurisdiction of such
action. A judgment for costs when taxed against the United States shall,
in an amount established by statute, court rule, or order, be limited to
reimbursing in whole or in part the prevailing party for the costs
incurred by such party in the litigation.
2
....
Except as otherwise specifically provided by statute, a court shall award
to a prevailing party other than the United States fees and other
expenses, in addition to any costs awarded pursuant to subsection (a),
incurred by that party in any civil action (other than cases sounding in
tort), including proceedings for judicial review of agency action, brought
by or against the United States in any court having jurisdiction of that
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(a)(1), (d)(1)(A). Thus, if Ms. Velon is the prevailing party and the
commissioner’s position was not substantially justified, Ms. Velon is entitled to an
award of attorney fees. Id.
In responding to an EAJA fee motion, the Commissioner has the burden to
show substantial justification. Welter, 941 F.2d at 676. To meet her burden, the
Commissioner must demonstrate that the denial of benefits had reasonable grounds
in law and fact. Id. The Commissioner’s position may be substantially justified even if
that position was not correct—provided that “a reasonable person would think it
correct.” Pierece, 487 U.S. at 566 n.2.
ANALYSIS
To be entitled to attorney fees under the EAJA, a prevailing party must be
considered eligible under 28 U.S.C. § 2412(B)(2)(A). Because Ms. Velon’s net worth is
under $2 million, and because she was awarded a remand in this case pursuant to
sentence four of 24 U.S.C. § 405(g), the Commissioner does not contest Ms. Velon’s
eligibility or prevailing-party status.. Thus, the only questions before this Court are
whether the Commissioner’s position was substantially justifiable and, if not, whether
the amount of attorney fees Ms. Velon seeks is excessive.
Substantial Justification
The Commissioner argues that she was justified in relying on the ALJ’s
determinations. Resp. at 2. However, the Court recommended that this case be
remanded for further proceedings on Ms. Velon’s motion for summary judgment, and
extensively detailed the ALJ’s errors that warranted such a recommendation. R. & R.
at 9-17, 18. The fact that this case was remanded on summary judgment and that the
3
errors committed by the ALJ were particularly conspicuous demonstrates that the
government’s position was not justified. See Gamber v. Bowen, 823 F.2d 242, 245-46
(8th Cir. 1987) (“[T]he fact that the district court granted summary judgment for
[plaintiff] . . . suggested that the [defendant] government was unreasonable in
pursuing the litigation.”); Jackson v. Bowen, 807 F.2d 127, 129 (8th Cir. 1986) (“[C]ases
in which summary judgment are granted . . . raise the possibility that the government’s
position was unreasonable.”) Keasler v. United States, 766 F.2d 1227, 1231 (8th Cir.
1985) (“[C]ases, for example, where there has been a judgment on the pleadings or
where there is a directed verdict . . . clearly raise the possibility that the Government
was unreasonable in pursuing litigation” (internal quotations omitted)); cf. Herman v.
Schwent, 177 F.3d 1063, 1065 (8th Cir. 1999) (“[T]he Government’s ability to convince
federal judges of the reasonableness of its position, even if . . . rejected in a final
decision on the merits, is the most powerful indicator of the reasonableness.” (internal
quotations omitted)). See generally R. & R. at 9-17. Moreover, the district court adopted
this Court’s R&R in its entirety. Order at 1. Thus, the Court finds that the
Commissioner was not justified in relying on the ALJ’s determinations.
Amount Claimed
The Commissioner argues that even if Ms. Velon is entitled to fees, she is not
entitled to the amount she claims here. The Commissioner does not dispute the rates
charged by Ms. Velon’s attorney and paralegal, but alleges that the 46.5 hours billed by
her attorney is excessive given his experience and the relative simplicity of this case.
Resp. at 7-8 (citing Handke v. Astrue, No. C06-4106-PAZ, 2008 WL 2095545, *1 (N.D.
Iowa May 16, 2008)). The Court is not persuaded. Given the multiple and varied
issues in this case, as well as the fact that courts from this district have repeatedly
granted fees for hours well in excess of the 46.5 claimed here, the Court finds these
hours reasonable. See, e.g., Chang v. Berryhill, 15-cv-4496 (ADM/HB), 2017 WL
2773539, at *2 (D. Minn. May 31, 2017) (awarding 52 hours in a case with a 540-page
record and 32-page brief); Gaul v. Colvin, 13-cv-163 (JNE/FLN), 2014 WL 4096972, at
*2 (D. Minn. Aug. 19, 2014) (awarding 75.2 hours in a case with a record of fewer
than 500 pages); Ubel v. Colvin, 13-cv-875 (JRT/JJG), 2014 WL 2009051, at *1-4 (D.
Minn. May 16, 2014) (awarding 61 hours in a case with a 879-page record and 23-page
memorandum).
The Commissioner further argues that Ms. Velon should not be able to recover
for the two hours a paralegal spent “[p]rint[ing] and assembl[ing] [the] administrative
4
record,” as those tasks did not require the expertise of a paralegal and thus amount to
secretarial work. Resp. at 9; Ficek Aff. Attach. A at 1. The Court agrees. Courts have
consistently held that tasks that could have been performed by a paralegal should not
be billed at an attorney’s rate, and that “purely clerical or secretarial tasks should not
be billed at a paralegal rate.” Missouri v. Jenkins ex rel. Agyei, 491 U.S. 274 288 n.10
(1989); accord Philipp v. ANR Freight Sys., Inc., 61 F.3d 669, 675 (8th Cir. 1995)
(affirming district court’s reduction of fee award because “many hours claimed were
based upon the performance of clerical duties, including the 65 hours [the attorney]
devoted to preparing the fee application”); Granville House, Inc. v. Dep’t of Health, Educ.,
& Welfare, 813 F.2d 881, 884 (8th Cir. 1987) (holding attorney not entitled to
compensation for “the fifteen hours of work which could have been done by support
staff”); MacGregor v. Mallinckrodt, Inc., Civil No. 01-828 (DSD/SRN), 2003 WL
23335194, at *13 (D. Minn. July 21, 2003) (“It is appropriate to bill for paralegal work
at reasonable paralegal rates, but clerical duties do not justify attorney and paralegal
rates.”).
Lastly, the Commissioner argues that Ms. Velon is not entitled to the $223.04
claimed in costs and expenses. Resp. at 9. Specifically, the Commissioner argues that
the use of the term “necessary” in 28 U.S.C. §§ 2412(d)(2) and 1920, and 28 U.S.C. §
1915(f)(1) generally, preclude Ms. Velon from recovering certain costs. Id. at 9-10.
However, the Commissioner does not provide and the Court is not aware of any
authority that construes these statutory provisions in a way that would support her
argument. Thus, Ms. Velon is entitled to these costs pursuant to the EAJA.
After thoroughly reviewing the record and proceedings in this case, the Court
has determined that the fees and costs claimed by Ms. Velon pursuant to the EAJA
are not unreasonable. But Ms. Velon’s attorney erroneously billed two hours at $75
per hour—the paralegal rate—for tasks that were secretarial or clerical in nature. Thus
$150 (2 x $75) should be subtracted from the fees claimed.
5
RECOMMENDATIONS
Based on the foregoing, the Court makes the following
RECOMMENDATIONS:
1. Ms. Velon’s Motion for Attorney Fees (ECF No. 27) should be
GRANTED; and
2. The Commissioner shall promptly pay attorney fees to Ms. Velon in the
amount of $8,597.54.
/s/ Katherine Menendez
Katherine Menendez
United States Magistrate Judge
Date: August 21, 2018
NOTICE
Filing Objections: This Report and Recommendation is not an order or
judgment of the District Court and is therefore not appealable directly to the Eighth
Circuit Court of Appeals.
Under Local Rule 72.2(b)(1), “a party may file and serve specific written
objections to a magistrate judge’s proposed finding and recommendations within 14
days after being served a copy” of the Report and Recommendation. A party may
respond to those objections within 14 days after being served a copy of the
objections. LR 72.2(b)(2). All objections and responses must comply with the word or
line limits set for in LR 72.2(c).
Under Advisement Date: This Report and Recommendation will be
considered under advisement 14 days from the date of its filing. If timely objections
are filed, this Report and Recommendation will be considered under advisement from
the earlier of: (1) 14 days after the objections are filed; or (2) from the date a timely
response is filed.
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?