Semler v. Berryhill
Filing
36
ORDER granting in part and denying in part 28 Motion for Attorney Fees(Written Opinion) Signed by Magistrate Judge Tony N. Leung on 3/27/2018. (GFK)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
John E. Semler,
Case No. 16-cv-2445 (TNL)
Plaintiff,
v.
ORDER
Nancy A. Berryhill, Acting Commissioner
of Social Security,
Defendant.
J. Asha Sharma and Paul McGrath, Disability Partners PLLC, 2579 Hamline Avenue
North, Suite C, Saint Paul, Minnesota 55113 (for Plaintiff); and
Bahram Samie, Assistant United States Attorney, United States Attorney’s Office, 300
South Fourth Street, Suite 600, Minneapolis, MN 55415 (for Defendant).
Plaintiff John E. Semler, through his attorneys, brought suit contesting Defendant
Commissioner of Social Security’s denial of his application for adult child’s insurance
benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401–33. (ECF No. 1).
Plaintiff’s motion for summary judgment was granted, Defendant’s motion for summary
judgment was denied, and the Commissioner’s decision was vacated as to steps two
through five and this case was remanded for further proceedings. (ECF No. 25).
Plaintiff then filed an Application for Award of Attorney’s Fees Pursuant to the
Equal Access to Justice Act, 28 U.S.C. § 2412. (ECF No. 28). Plaintiff requests an award
of attorney’s fees totaling $18,885.25 for 97.3 hours of work. (ECF Nos. 28–31, 33). In
support of the motion, Plaintiff’s counsel has provided an affidavit attesting to the legal
services performed alongside an itemized list of the time worked. (ECF No. 33).
Defendant submitted an opposition brief, arguing that Plaintiff cannot be compensated for
clerical tasks and also seeking a wholesale reduction of the fees rewarded. (ECF No. 34).
I.
ANALYSIS
A. Legal Standard
Under the Equal Access to Justice Act (“EAJA”), “a party who prevails in a civil
action against the United States—including a lawsuit seeking judicial review of
administrative action—shall be awarded fees and expenses ‘unless the court finds that the
position of the United States was substantially justified or that special circumstances
make an award unjust.’” Rapp v. Colvin, Case No. 12-cv-2473 (PJS/TNL), 2014 WL
5461889, at *1 (D. Minn. Oct. 27, 2014) (quoting 28 U.S.C. § 2412(d)(1)(A)). Fees must
be awarded under the EAJA to a prevailing social security claimant unless the
Commissioner’s “position in denying benefits was substantially justified.” Welter v.
Sullivan, 941 F.2d 674, 676 (8th Cir. 1991). The Commissioner “bears the burden of
proving the denial of benefits was substantially justified.” Id.
The Commissioner does not dispute that Plaintiff was the prevailing party. (ECF
No. 34, at 2). Nor does the Commissioner raise any argument that her position in denying
benefits was substantially justified. Rather, the Commissioner challenges the requested
fees on two grounds. First, the Commissioner argues that counsel billed for some clerical
activities which are non-compensable under the EAJA. (ECF No. 34, at 2–4). Second, the
Commissioner argues that the amount of time spent by counsel was unreasonable. (ECF
No. 34, at 4–6). In response, Plaintiff’s counsel concedes some hours billed are non2
compensable, (ECF No. 35, at 1–3), but argues that the time spent overall was
reasonable, (ECF No. 35, at 3–11).
B. Administrative and Clerical Tasks
“It is well settled that costs associated with clerical tasks are typically considered
overhead expenses reflected in an attorney’s hourly billing rate and are not properly
reimbursable.” Brandt v. Astrue, 2009 WL 1727472, at *4 (D. Or. June 16, 2009) (citing
Missouri v. Jenkins, 491 U.S. 274, 288 n. 10 (1989)); Knudsen v. Barnhart, 360 F. Supp.
2d 963, 977 (N.D. Iowa 2004). “Purely clerical activities, regardless of who performs
them, are considered overhead and are not compensable as EAJA attorney fees.” Gough
v. Apfel, 133 F. Supp. 2d 878, 881 (W.D. Va. 2001) (citing Jenkins, 491 U.S. at 288 n.
10); Granville House, Inc. v. Dept. of Health, Educ. and Welfare, 813 F.2d 881, 884 (8th
Cir, 1987) (holding that work which could have been completed by support staff is not
compensable under the EAJA); Magwood v. Astrue, 594 F. Supp. 2d 557, 562 (E.D. Pa.
2009) (concluding that purely clerical activities, regardless of who performs them, are
considered overhead and not compensable as attorney fees); see Brandt, 2009 WL
1727472, at *3, *5 (declining to award fees for clerical tasks performed by an attorney
notwithstanding the fact that the attorney “d[id] not utilize any paralegal or assistants for
any task”). Clerical activities include tasks such as filing documents, preparing and
serving summons, preparing and serving a civil cover sheet, mailing items to the court or
other parties, downloading and emailing documents, and scanning documents as well as
preparing an itemized invoice for legal services. See, e.g., Neil v. Comm’r of Soc. Sec.,
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495 Fed. App’x 845, 847 (9th Cir. 2012); Spiller v. Comm’r of Soc. Sec., 940 F. Supp. 2d
647, 651 (S.D. Ohio 2013); Brandt, 2009 WL 1727472, at *3–*5.
Here, the Commissioner challenges 4.1 hours billed by Plaintiff’s counsel,
asserting the time entries constitute non-compensable clerical tasks. First, the
Commissioner challenges 3.5 hours from July 11, 2016, July 15, 2016, July 18, 2016, and
July 19, 2016 for preparing forms to be filed with the court; 1 0.3 hours on December 7,
2016 for mailing Plaintiff’s motion for summary judgment; and 0.3 hours on January 27,
2017 for scanning and filing Plaintiff’s reply brief. (ECF No. 34, at 3–4). The
Commissioner offers no analysis as to the hours challenged, merely asserting that “these
purely clerical tasks are non-compensable under the EAJA and should not have been
included in Plaintiff’s fee application . . .” (ECF No. 34, at 4).
Plaintiff asserts the 1.2 hours spent on July 11, 2016 gathering and drafting forms
for filing this case in district court and researching filing procedures and rules was not
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Concerning July 11, 2016, Plaintiff billed 1.2 hours to gather court filing forms and look up new
filing and electronic case filing rules and began drafting district court filing forms; 0.1 hours for a phone
call to the client regarding an in forma pauperis (“IFP”) application, but the client did not answer and
there was no voicemail answering system; and 0.2 hours for the two attorneys working on the case to
consult regarding the administrative hearing, including whether the ALJ addressed Plaintiff’s hearing
loss, what the independent medical expert testified to, and issues that needed clarification for the appeal.
(ECF No. 33, Ex. A, at 1). With respect to July 15, 2016, Plaintiff’s counsel billed for 0.1 hours in an
attempt to reach Plaintiff’s sister/caregiver concerning the IFP application, leaving a voicemail message.
(ECF No. 33, Ex. A, at 1). For July 18, 2016, Plaintiff’s counsel billed 0.9 hours for completing the
complaint and civil cover sheet and filing the documents through ECF, as well as another attempt to reach
Plaintiff and his sister concerning the IFP application. (ECF No. 33, Ex. A, at 1). For July 19, 2016,
Plaintiff’s counsel billed: 0.8 hours concerning telephone calls with the district court and Plaintiff
regarding the IFP application, then completing and filing the IFP application; 0.2 hours to prepare and
mail the consent to a magistrate judge form required for social security cases in this District and mailed it
to the court; and 0.2 hours to complete the EAJA fee assignment form. (ECF No. 33, Ex. A, at 1–2).
The Commissioner does not reconcile the fact that the July 2016 dates to which she references
comprise of 3.7 hours of time entries, rather than the 3.5 hours challenged in her brief. The Commissioner
has not specified exactly which of the 3.5 out of the 3.7 hours sought that she deems clerical.
Accordingly, the Court examines the full range of entries from July 11, 2016, July 15, 2016, July 18,
2016, and July 19, 2016.
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clerical in nature because it required the knowledge of an attorney to ensure proper
completion and that it is not excessive or unreasonable because Plaintiff’s attorneys have
very little experience handling cases in federal district court. (ECF No. 35, at 2). Here,
while the Court is sympathetic with Plaintiff’s counsels’ inexperience litigating in federal
court and commends time spent ensuring Plaintiff’s complaint was properly filed, a
requisite for admission to practice in this District is an attorney’s familiarity with the
Federal Rules of Civil Procedure and the court’s local rules. D. Minn. LR 83.5(c). As
noted above, time spent filing documents, preparing and serving summons, and preparing
and serving a civil cover sheet are considered clerical activities. As such, the Court
concludes these 1.2 hours spent on July 11, 2016 are non-compensable under the EAJA.
Moreover, Plaintiff agrees to eliminate the 0.1 hours spent on July 11, 2016 concerning
the unsuccessful telephone call. (ECF No. 35, at 3). Accordingly, the 0.1 hours spent on
the unsuccessful telephone call is eliminated from Plaintiff’s fee request. With respect to
the 0.2 hours spent by Plaintiff’s two attorneys to consult with one another regarding the
administrative hearing, including whether the Administrative Law Judge (“ALJ”)
addressed Plaintiff’s hearing loss, what the independent medical expert testified to, and
issues that needed clarification for the appeal, the Court concludes this is compensable
EAJA work. As such, the total hours for July 11, 2016 are reduced from 1.5 to 0.2 hours.
As with the unsuccessful July 11 telephone call, Plaintiff agrees to eliminate the
0.1 hours spent on July 15, 2016 on another unsuccessful telephone call. (ECF No. 35, at
3). Accordingly, the 0.1 hours spent on July 15, 2016 is eliminated from Plaintiff’s fee
request.
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Plaintiff agrees to reduce the time spent on July 18, 2016 for filing documents
electronically, noting that Plaintiff’s counsel does not employ a paralegal but understands
such time is non-compensable. (ECF No. 35, at 2–3). Plaintiff suggests a reduction from
0.9 hours to 0.4 hours. (ECF No. 35, at 3). The Court finds Plaintiff’s offered reduction is
reasonable. Time spent drafting the complaint is compensable under the EAJA, but time
spent completing the civil cover sheet and filing the documents constitutes noncompensable clerical work.
With respect to the 0.8 hours billed on July 19, 2016, Plaintiff suggests lowering
the time spent from 0.8 hours to 0.5 hours to eliminate the time spent on a telephone call
and the time spent electronically filing. (ECF No. 35, at 3). The Court concludes a more
reasonable reduction is to 0.3 hours. The 0.8 hours on July 19, 2016 concerns multiple
telephone calls and electronic filing. When viewing the July 18, 2016 reduction in time
due to electronic filing in relation to the simple nature of the IFP application, (ECF No.
4), 0.3 hours properly compensates the effort expended on July 19, 2016. Plaintiff agrees
to reduce the July 19, 2016 entry for drafting and mailing the consent form from 0.2
hours to 0.1 hours to eliminate the time spent mailing. (ECF No. 35, at 3). The Court
finds this constitutes non-compensable clerical work, as such a form is a filing
requirement in this District as per Local Rule 7.2(a). And with respect to the 0.2 hours
billed for completing the EAJA fee assignment form and mailing to Plaintiff for
signature, the Court concludes this entry should be eliminated from consideration because
it is indistinguishable from a later billing entry from Plaintiff’s counsel: 2.0 hours billed
on December 8, 2017 for preparation of the EAJA fee petition. (ECF No. 33, Ex. A, at 4).
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Plaintiff has filed the same affidavit twice with the Court, once early in the case and then
again accompanying his EAJA fee petition. (Compare ECF No. 14 with ECF No. 31). As
such, Plaintiff cannot recover the fees for this work twice. Therefore, the total hours for
July 19, 2016 are reduced from 1.2 to 0.3 hours.
With respect to December 7, 2016, Plaintiff’s counsel billed for 0.3 hours to mail
two paper courtesy copies of its summary judgment and brief to the court, requiring a trip
to the post office. (ECF No. 33, Ex. A, at 4). And with respect to January 27, 2017,
Plaintiff billed for 0.3 hours to scan the reply brief and supporting certifications for
electronic filing as well as mailing paper courtesy copies to the court. (ECF No. 33, Ex.
A, at 4). Plaintiff concedes these time entries both constitute tasks that could have been
performed by clerical staff, making them non-compensable under the EAJA. (ECF No.
35, at 2). Therefore, the Court concludes the 0.6 hours billed on December 7, 2016 and
January 27, 2017 constitute non-compensable clerical tasks and reduces the hours
requested by Plaintiff’s counsel accordingly.
In sum, the Court reduces Plaintiff’s total requested hours by 3.4 hours as noncompensable under the EAJA. As such, Plaintiff’s total hours at issue are reduced from
97.3 to 93.9 hours. The Court next turns to the Commissioner’s challenge as to the
reasonableness of these claimed hours.
C. Attorney Time Spent
Attorney’s fees and expenses under the EAJA must be reasonable. See 28 U.S.C.
§ 2412(d)(2)(A); Spiller, 940 F. Supp. 2d at 650. Counsel for the prevailing party has an
ethical duty to make a good faith effort to exclude “excessive, redundant, or otherwise
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unnecessary” hours from counsel’s fee petition. Hensley, 461 U.S. at 434; see 28 U.S.C.
§ 2412(b). “Once the adverse party objects to the fee request, the Court has a great deal
of discretion to adjust the requested fees in light of the objections raised.” Magwood, 594
F. Supp. 2d at 562.
In the instant case, the Commissioner asserts that Plaintiff’s counsels’ total billed
hours are unreasonable and constitute a “drastic deviation from the average EAJA in
Social Security disability cases, which is 20-40 hours.” (ECF No. 34, at 4, 6). The
Commissioner asserts that the 70.2 hours that counsel billed from June 20, 2016 through
November 28, 2016 for reviewing the record, consulting with each other, and preparing
Plaintiff’s initial brief is excessive. (ECF No. 34, at 5). The Commissioner argues that
counsel’s brief contains lengthy sections of boilerplate language outlining the general
standard of review and social security law and policy, a 12-page procedural history and
statement of facts, and 14 pages of counsel’s actual argument. (ECF No. 34, at 5). The
Commissioner requests a reduction of counsel’s briefing time to one hour of time per
page of substantive briefing, or 26 total hours, for preparing Plaintiff’s initial brief. (ECF
No. 34, at 5).
The Commissioner also challenges the 20.6 hours of time that counsel billed in
January 2017 for reviewing the Commissioner’s response brief and preparing Plaintiff’s
eight page reply brief. (ECF No. 34, at 5–6). The Commissioner argues that her brief
merely responded to the issues Plaintiff raised in his initial brief and did not raise
additional issues, and further contends that Plaintiff’s reply brief merely restates his
arguments from his opening brief. (ECF No. 34, at 5–6). Because of this, the
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Commissioner argues that Plaintiff’s counsel should not be compensated for more than
one hour of time per page, or eight total hours for preparing Plaintiff’s reply brief. (ECF
No. 34, at 5–6).
As Plaintiff points out, the Commissioner “has done little to specify which of [the
60.9] hours is unreasonable or excessive.” (ECF No. 35, at 4). Rather, the Commissioner
submits that it would be excessive and unreasonable to compensate Plaintiff for more
than one hour of time per page of substantive briefing on the initial memorandum and
reply memorandum. The Commissioner points to no case law setting such an exacting
standard. Such a standard, Plaintiff argues, would effectively price out attorneys from
handling complicated cases, particularly attorneys who have limited federal litigation
experience. (ECF No. 35, at 11–2). Additionally, Plaintiff’s counsel notes that, because of
their limited federal litigation experience, they did not use boilerplate language as
asserted by the Commissioner, but instead had to research the law as was directly
applicable to Plaintiff’s disabled adult child claims. (ECF No. 35, at 4–5). Plaintiff’s
counsel also notes that an experienced social security attorney rejected Plaintiff’s case as
it was considered undesirable. (ECF No. 35, at 7–8).
Here, the Court does not find the fees requested by Plaintiff to be unreasonable. As
detailed in the September 26, 2017 Order, the ALJ “improperly combined the various
references and requirements pertaining to age for adult child’s disability benefits, thereby
tainting his analysis through an erroneous legal standard.” (ECF No. 25, at 5). The
improper framing of the “regulatory framework governing Plaintiff’s application for
benefits tainted [the ALJ’s] decision throughout the sequential evaluation[] process.”
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(ECF No. 25, at 5). The misstatement of the applicable regulations by an experienced
ALJ supports just how difficult the legal framework concerning Plaintiff’s claim was, a
framework under which Plaintiff’s attorneys expended significant hours untangling a
defective administrative decision.
Nor will the Court deduct Plaintiff’s requested fees because his brief contains legal
standards and framework. The case here was not a routine DIB or SSI administrative
appeal, but involved a niche area of social security law relating to disabled adult child
benefits. The case here was decided entirely upon the legal framework encompassing
such a claim, rather than the application of the substantial evidence standard. As such, it
was reasonable for Plaintiff’s brief to focus on the appropriate legal guidance, rather than
a fact-intensive inquiry into the ALJ’s decision, because a proper understanding of the
governing principles was necessary to untangle the ALJ’s error in this case.
Nor will the Court punish Plaintiff’s counsel with an across-the-board reduction in
fees due to their inexperience in federal court. As Plaintiff’s counsel note, an experienced
social security appeal litigator declined Plaintiff’s case citing multiple factors inhibiting a
successful appeal. It is extremely unlikely that Plaintiff, who alleges mental disability
since birth, could have litigated this case pro se to the same result achieved by his
counsel. But for Plaintiff’s counsels’ efforts, Plaintiff would be foreclosed from receiving
benefits. An award of EAJA fees encourages attorneys to take on complicated cases,
including attorneys that do not have extensive experience litigating such matters.
The Commissioner argues that the average award in social security cases ranges
between 20 to 40 hours. See Coleman v. Astrue, 2007 WL 4438633, at *3 (N.D. Iowa
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Dec. 17, 2007) (“Although some courts have held, as the Commissioner suggests, that a
total of 15 to 20 hours is reasonable in this type of case, other courts have held routine
disability benefits cases commonly require 20 to 40 hours of attorney time.”) (emphasis
in original). “Coleman only acknowledged that some courts have found that the typical
case falls within this range, and the Coleman court also explicitly noted that other
courts—such as the Second Circuit—have affirmed fee awards for many more hours
‘based on the facts of the case.’” Carpenter v. Colvin, Case No. 14-cv-1664 (JRT/TNL),
2016 WL 4218282, at *2 (D. Minn. Aug. 10, 2016) (citing Coleman, 2007 WL 4438633,
at *3). Here, the facts of this case do not justify a wholesale reduction in the number of
hours awarded.
While Plaintiff was represented by his counsel from the administrative stage to
this federal court action, indicating a degree of familiarity with the underlying facts, this
case involved a particularly difficult legal dispute that was far from simple or routine.
Once the ALJ erred, Plaintiff’s case shifted substantially from trying to prove disability to
having to argue to this Court the appropriate legal standard. Such a shift in the case
required the expenditure of additional time and effort beyond more routine and typical
social security benefits litigation. The difficulty in the legal framework surrounding
Plaintiff’s application for benefits is apparent in the experienced ALJ’s misunderstanding
and misapplication of the governing legal standard. As such, while Plaintiff’s counsel
requests compensation for a range of hours outside those typical in many disability
benefits cases, this case was far from routine and the time spent was justified. In this
context, the Commissioner must do more to challenge successfully the fees requested by
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Plaintiff than to point out generally that the total number of hours expended here is
relatively high compared to other benefits cases. Specific challenges by the
Commissioner would have been helpful to the Court, for example: X number of hours
spent by Plaintiff’s counsel researching simple topic Y is not reasonable because of Z
reason and should be reduced to W hours. Rather than challenge any specific time
entry—other than those related to clerical tasks addressed by the Court above—the
Commissioner asked only for a blanket reduction in the time awarded. Given the relative
complexity of this case and in the absence of any specific challenge by the
Commissioner, the Court does not find the fees requested to be unreasonable.
Finally, the Court does not agree with the Commissioner’s assertion that Plaintiff’s
reply brief “merely restate[d] his arguments” raised in his initial brief. (ECF No. 34, at 5).
Through his reply brief, Plaintiff discussed five discrete issues, rebutting the
Commissioner’s legal arguments while buttressing his own. Rather than a mere recitation
of previous arguments, the Court finds the reply brief was a succinct response to the
Commissioner’s 18-page brief seeking to uphold a legally inadequate administrative
decision. Again, absent any specific challenge by the Commissioner as to why specific
time spent was unreasonable in some manner beyond the Commissioner’s general request
for an across-the-board reduction in time, the Court will not find the fees requested to be
unreasonable. Accordingly, the Court does not reduce the time spent by Plaintiff’s
counsel on the reply brief.
In sum, the Court awards Plaintiff fees under the EAJA for 93.9 hours of work.
While this is well above what the Commissioner asserts is average for a social security
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appeal in federal court, this was no average case and the Court finds no compelling
reason to accept the Commissioner’s request for a blanket reduction in Plaintiff’s fees.
From inception, this case did not even fall under the typical DIB or SSI statutory scheme,
but under that governing adult child’s insurance benefits. The appropriate standard eluded
even an experienced ALJ. The Commissioner wrote 18-pages arguing for the affirmation
of a legally-suspect administrative decision and Plaintiff’s counsel had to spend sufficient
time drafting a reply brief. While Plaintiff’s fee request surely reaches the upper limit of
reasonability, the fees requested are not excessive under the facts attending this particular
case.
Of final note, the parties are pennies apart as to the appropriate hourly rate—
Plaintiff submits $194.17 per hour, (ECF No. 35, at 11 n.3), while the Commissioner
asserts $194.09 per hour (ECF No. 34, at 2)—which the Court will split, using $194.13 as
the applicable hourly rate. Thus, Plaintiff is awarded reasonable attorney’s fees in the
amount of $18,228.81 for 93.9 hours of work.
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II.
CONCLUSION
Based upon the foregoing and all of the files, records, and proceedings herein, IT
IS HEREBY ORDERED that: Plaintiff’s Application for Award of Attorney’s Fees
Pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412, (ECF No. 28), is
GRANTED IN PART and DENIED IN PART as follows: Plaintiff is AWARDED
$18,228.80 for reasonable attorney’s fees under the EAJA. This award shall fully and
completely satisfy any and all claims for fees, costs, and/or expenses that may have been
payable to Plaintiff in this matter pursuant to the EAJA.
Date: March 27, 2018
s/ Tony N. Leung
Tony N. Leung
United States Magistrate Judge
District of Minnesota
Semler v. Berryhill
Case No. 16-cv-2445 (TNL)
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