Emery v. Berryhill
Filing
37
ORDER granting in part and denying in part 27 Motion for Attorney Fees. (Written Opinion) Signed by Magistrate Judge Tony N. Leung on 5/16/2019. (EB)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Jean P. R. E.,
Case No. 17-cv-1988 (TNL)
Plaintiff,
v.
ORDER
Nancy A. Berryhill, Acting Commissioner
of Social Security
Defendant.
Karl E. Osterhout, Osterhout Berger Disability Law, LLC, 521 Cedar Way, Suite 200,
Oakmont, PA 15139; and Edward C. Olson, 331 Second Avenue South, Suite 420,
Minneapolis, MN 55401 (for Plaintiff).
Tracey Wirmani, Special Assistant United States Attorney, Social Security
Administration, 1301 Young Street, Suite A702, Dallas, TX 75202; and Bahram Samie,
Assistant United States Attorney, United States Attorney’s Office, 300 South Fourth
Street, Suite 600, Minneapolis, MN 55415 (for Defendant).
I. INTRODUCTION
On September 17, 2018, the Court granted Plaintiff Jean P. R. E.’s motion for
summary judgment, denied Defendant Nancy A. Berryhill’s (“the Commissioner”) motion
for summary judgment, and remanded this matter to the Social Security Administration for
further proceedings. See generally Emery v. Berryhill, No. 17-cv-1988 (TNL), 2018 WL
4407441 (D. Minn. Sept. 17, 2018). This matter now comes before the Court on Plaintiff’s
petition for an award of attorney fees pursuant to the Equal Access to Justice Act (“EAJA”),
28 U.S.C. § 2412. (Pet. for Att’y Fees, ECF No. 27).
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II. ANALYSIS
Under the 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, No. 12-cv2473 (PJS/TNL), 2014 WL 5461889, at *1 (D. Minn. Oct. 27, 2014) (quoting 28 U.S.C.
§ 2412(d)(1)(A)). The Commissioner does not assert that either of these exceptions
applies. Rather, the Commissioner objects to the amount of fees requested, asserting that
some of the time spent was unreasonable.
Plaintiff seeks compensation for 45.9 hours of work performed by his attorneys at
the rate of $196.50 per hour for a total of $9,019.35. 1 (Pet. for Att’y Fees ¶¶ 6, 8). The
Commissioner raises several challenges to the number of hours claimed by Plaintiff. In
brief, the Commissioner maintains that 35 hours of attorney time is reasonable for this
matter and any additional time was not reasonably expended. Accordingly, it is the
Commissioner’s position that a fee award of $6,877.50 is appropriate in this case. (Def.’s
Opp’n. at 7, ECF No. 32).
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This rate was calculated using the United States Department of Labor’s Consumer Price Index as proof that cost of
living has increased since the statutory rate of $125 was set, and therefore an increase to the statutory rate is warranted.
(Pet. for Att’y Fees ¶ 5). See 28 U.S.C. § 2412(d)(2)(A) (“[A]ttorney fees shall not be awarded in excess of $125 per
hour unless the court determines that an increase in the cost of living or a special factor, such as the limited availability
of qualified attorneys for the proceedings involved, justifies a higher fee.”). This method of rate calculation is favored
by the Eighth Circuit Court of Appeals, see, e.g., Johnson v. Sullivan, 919 F.2d 503, 504-05 (8th Cir. 1990), and the
Commissioner has not challenged its use here. Therefore, to compensate counsel properly consistent with increases in
the cost of living, this Court will apply a rate of $196.50 per hour.
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A. Pre-Complaint Work
The Commissioner first challenges reimbursement for “2 hours of work performed
prior to the filing of Complaint.” (Def.’s Opp’n at 3). The Commissioner contends that
those two hours constitute “administrative level” work, and thus are not compensable under
the EAJA. (Def’s Opp’n at 3 (citing Melkonyan v. Sullivan, 501 U.S. 89, 94, 97 (1991);
Cornella v. Schweiker, 728 F.2d 978, 988 (8th Cir. 1984)).
The work discussed in Melkonyan and Cornella is distinguishable from the precomplaint work in this case. In those cases, the work discussed was performed in
administrative proceedings, not in preparation for the filing of a civil action.
See
Melkonyan, 501 U.S. at 94, 97; Cornella, 728 F.2d at 988-89; see also Kelly v. Bowen, 862
F.2d 1333, 1336 (8th Cir. 1988) (“[W]e reaffirm Cornella v. Schweiker and hold that, under
the EAJA . . . , a Social Security claimant cannot recover attorney’s fees for work
performed in administrative proceedings after remand.” (emphasis added)).
Federal courts in California have squarely and repeatedly rejected the
Commissioner’s interpretation of Melkonyan. See, e.g., Adams v. Berryhill, No. CV 174030 AFM, 2018 WL 6333694, at *3 (C.D. Cal. Oct. 26, 2018) (“Nothing in Melkonyan
addresses the issue of whether work performed in preparation of filing a civil complaint is
compensable under the EAJA.”); Kirk v. Berryhill, 244 F. Supp. 3d 1077, 1083 (E.D. Cal.
2017) (“Furthermore, contrary to defendant’s contention, Melkonyan does not stand for the
proposition that compensation is not permitted for work performed before a suit has been
brought in a court.” (quotation omitted)); Kuharski v. Colvin, No. 2:12-CV-1055 AC, 2015
WL 1530507, at *5 (E.D. Cal. Apr. 2, 2015) (“There is simply no holding, statement, or
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note in Melkonyan that could possibly be interpreted as indicating that work done after
completion of the administrative process, but that pre-dates the complaint, is noncompensable under EAJA.”); Haislip v. Colvin, No. 1:12-cv-00964 (GSA), 2014 WL
1846052, at *4 (E.D. Cal. May 8, 2014) (“Neither [Melkonyan nor Mendenhall v. NTSB,
213 F.3d 464 (9th Cir. 2000),] holds that work performed in preparation for a civil action
after the administrative proceedings have concluded is noncompensable under EAJA.”);
Thompson v. Astrue, No. 2:11-CV-0429 EFB, 2012 WL 5949218, at *2 (E.D. Cal. Nov.
28, 2012) (Melkonyan did not support “the proposition that plaintiff is precluded from
seeking any fees under EAJA for work completed prior to the commencement of this civil
action”); see also, e.g., San v. Comm’r of Soc. Sec., No. 1:11-CV-1211-BAM, 2016 WL
500576, at *4 (E.D. Cal. Feb. 9, 2016); Samsaguan v. Colvin, No. ED CV 12-2219-DFM,
2014 WL 4988205, at *4 (C.D. Cal. Oct. 6, 2014).
The pre-complaint work in this case was not for work performed at the
administrative level, which had concluded, but was in preparation for filing this action in
federal court. Notably, Plaintiff’s attorneys did not represent him in the underlying
administrative proceedings. The two hours claimed was spent reviewing those underlying
proceedings and conferring with Plaintiff regarding bringing this action in federal court.
“An attorney is expected to be familiar with [the] case prior to filing a complaint in federal
court.” Jones v. Colvin, No. 2:14-CV-2088-PKH-MEF, 2015 WL 5330885, at *3 (W.D.
Ark. Aug. 17, 2015), adopting report and recommendation, 2015 WL 5305230 (W.D. Ark.
Sept. 10, 2015); see Caylor v. Astrue, 769 F. Supp. 2d 1350, 1353 (M.D. Fla. 2011)
(“Plaintiff’s counsel was thus obligated to familiarize himself with the case before filing
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the federal court complaint.”); see also Fed. R. Civ. P. 11(b). Courts regularly award
compensation under the EAJA for time spent by counsel to familiarize themselves with the
underlying administrative proceedings before filing in federal court. See, e.g., Evans v.
Berryhill, 298 F. Supp. 3d 1210, 1213 (D. Minn. 2018); Dimond v. Berryhill, No. 16-cv322 (BRT), 2017 WL 4898509, at *2 (D. Minn. Sept. 22, 2017); Jones, 2015 WL 5330885,
at *3; Masterson v. Colvin, Civil No. 12-2091, 2013 WL 4961648, at *3 (W.D. Ark. Sept.
13, 2013); Caylor, 769 F. Supp. 2d at 1353 (citing cases); see also, e.g., Cameron v.
Barnhart, 47 F. App’x 547, 550-51 (10th Cir. 2002); Novotny v. Berryhill, No. 8:16CV529,
2018 WL 2234901, at *1-2 (D. Neb. May 16, 2018). Plaintiff’s “[c]ounsel was entirely
justified in spending a small amount of time analyzing the administrative record before
filing the complaint and initiating this action.” Evans, 298 F. Supp. 3d at 1213. The Court
finds that the two hours of work performed prior to the filing of the Complaint is reasonable
and compensable under the EAJA.
B. Preparation of Plaintiff’s Opening Brief
The Commissioner next contends that the 39.6 hours cumulatively claimed for
preparation of Plaintiff’s opening brief is unreasonable. These 39.6 hours consist of 19.50
hours spent reviewing the administrative transcript, identifying issues, and performing
legal research, and 20.1 hours drafting and editing the brief. The Commissioner asserts
that “the administrative transcript in this case was relatively short, consisting of only 392
pages,” and “the arguments contained in [Plaintiff’s] . . . brief are two of the most common
issues found in Social Security cases: whether the ALJ properly evaluated the opinion
evidence and Plaintiff’s Residual Functional Capacity.” (Def.’s Opp’n at 4). Additionally,
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the Commissioner contends that the time requested for legal research is unreasonable
because “the most recent case cited in counsel’s brief is from 2012” and Plaintiff’s brief
“contained a substantial amount of boilerplate language and quotations.” (Def.’s Opp’n at
4).
The Court does not consider the 19.5 hours spent reviewing the administrative
record, identifying issues, and performing legal research to be excessive. While the
Commissioner is correct that the administrative record in this case was relatively short, the
size of the record is not necessarily determinative. See Evans, 298 F. Supp. 3d at 1212
(“And the number of pages long an administrative record has is not necessarily indicative
of the complexity of the issues raised and presented.”).
Nor is the Court persuaded that the time spent on legal research was unreasonable
merely because the most recent case cited in the brief was from 2012. It may well be that
the case law that best supported Plaintiff’s position was from 2012 and earlier. Plaintiff’s
counsel effectively advocated on behalf of their client and obtained a positive result.
Absent a more specific showing by the Commissioner that more recent case law would
have been appropriate or that the case law cited was somehow inappropriate, the mere fact
that the most recent case cited was from 2012 is not enough on its own for the Court to
reduce the hours spent on legal research.
Turning to the nature of the arguments presented, the Court recognizes that the
administrative transcript was not overly long in this case. Yet, Plaintiff raised a number of
factually-intensive arguments. Although the ALJ’s assessment of a claimant’s residual
functional capacity and the weight given by the ALJ to the opinion evidence are frequently
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litigated and not particularly novel issues, this does not necessarily mean the amount of
time Plaintiff’s counsel spent briefing these issues was excessive. Here, Plaintiff’s counsel
thoroughly analyzed and argued issues pertaining to both physical and mental aspects of
the ALJ’s assessment of Plaintiff’s residual functional capacity. See, e.g., Vossen v. Astrue,
No. 07-cv-1567 (PAM/LIB), 2011 U.S. Dist. LEXIS 156326, at *12 (D. Minn., March 15,
2011) (finding 45 hours appropriate for review of administrative record over 400 pages and
preparation of brief which “challenged a number of different aspects of the ALJ’s
decisions”), adopting report and recommendation, 2011 U.S. Dist. LEXIS 38305 (D.
Minn. Apr. 7, 2011).
Similarly, while the Commissioner characterizes Plaintiff’s opening brief as
containing “a substantial amount of boilerplate language and quotations,” (Def.’s Opp’n at
4), the Court disagrees. The use of legal authority was appropriate overall and a reduction
is not warranted on this basis.
In sum, the Court finds the 39.6 hours cumulatively claimed for the preparation of
Plaintiff’s opening brief to be reasonable.
C. Preparation of Plaintiff’s Reply Brief
The Commissioner additionally contends that the 3.6 hours spent preparing and
filing Plaintiff’s reply was unreasonable. The Commissioner takes issue with the length of
the reply in relation to the time billed, arguing that “[t]he reply brief was only three pages
long, it did not contain any citations to the record, and nearly an entire page of the reply
consisted purely of case law quotations.” (Def.’s Opp’n at 6). The Commissioner also
describes the reply as “cursory.” (Def.’s Opp’n at 6.) With one small adjustment discussed
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below, see infra Section II.D, the time spent preparing the reply was neither excessive nor
unreasonable. The reply concisely focused on Plaintiff’s cane usage, which was ultimately
dispositive in this matter, and the relatively small amount of time expended assisted
Plaintiff in succeeding on his motion. Therefore, the Court will not reduce the time spent
preparing the reply.
D. Time Spent by Local Counsel
Finally, the Commissioner challenges the time requested by attorney Ed Olson as
local counsel. The Commissioner asserts that the work performed by Olson is clerical and
unnecessarily duplicative of the work performed by attorney Karl Osterhout.
Clerical activities, including 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,” are not properly reimbursable attorney
fees under the EAJA. Semler v. Berryhill, No. 16-cv-2445 (TNL), 2018 WL 1512056, at
*1 (D. Minn. Mar. 26, 2018). The Court finds that both of Plaintiff’s counsel engaged in
some clerical filing and will deduct a total of .4 hours from the 45.9 hours requested based
on the following entries: (1) 6/11/2017 (.20 hours for “File appeal electronically with Clerk
of Court”) (Olson); (2) 6/13/2017 (.10 hours for “Review and file PHV motion”) (Olson);
and (3) 2/2/2018 (.10 hours for “Preparation and filing of Plaintiff’s Reply Memorandum”)
(Osterhout). (ECF No. 28-1) (emphasis added).
As for the Commissioner’s assertion that local counsel performed unnecessarily
duplicative work, the Court does not agree. Under Local Rule 83.5(d)(2), as a nonresident
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attorney, attorney Osterhout “must associate with an active member of the court’s bar, in
good standing, who must . . . participate in the preparation and presentation of the case . . .
[and] accept service of all papers.” Attorney Olson’s participation in this case is required
under this Court’s Local Rules and the minimal time requested is consistent with those
obligations. See Kirtland v. Berryhill, No. 15-cv-3652 (BRT) (Ord. at 5-6, May 9, 2017,
ECF No. 26).
E. Conclusion
The Court finds that an award of 45.5 hours at a rate of $196.50 per hour for a total
of $8,940.75 is reasonable in this matter. This is consistent with other EAJA awards in
Social Security cases by other courts in this District. See, e.g., Waskosky v. Berryhill, No.
16-cv-3882 (KMM), 2018 WL 2980395, at *1-2 (D. Minn. June 14, 2018) (approximately
45 hours); Dimond, 2017 WL 4898509, at *2 (listing cases awarding between 40 and 45
hours); Fishbaugher v. Astrue, No. 11-cv-1252 (MJD/JJK), 2012 WL 4711585, at *3 (D.
Minn. Oct. 3, 2012) (approximately 48 hours).
The Court recognizes that the amount requested includes a 10% reduction by
Plaintiff’s counsel. The Court respects counsel’s decision to request compensation for less
than the full 51.1 hours expended on the case. See Waskosky, 2018 WL 2980395, at *2
(“An attorney’s decision to forego a request to be compensated for some portion of the
hours expended on a case can be made for many reasons.”). The Court will nevertheless
reduce the 45.9 hours requested by .4 hours for clerical filing. See id. (deducting time from
requested amount which had already been voluntarily reduced by 10%). In sum, the Court
finds that 45.5 hours is reasonable and awards $8,940.75.
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III. ORDER
Based on the foregoing, and all of the files, records, and proceedings herein, IT IS
HEREBY ORDERED that:
1. Plaintiff’s Counsel’s Petition for Attorney Fees Under the Equal Access to
Justice Act (ECF No. 27) is GRANTED IN PART and DENIED IN PART.
2. Plaintiff is awarded $8,940.75 in reasonable attorney fees, subject to offset by
any preexisting debt that Plaintiff owes to the United States.
Date: May
16
, 2019
s/ Tony N. Leung
Tony N. Leung
United States Magistrate Judge
District of Minnesota
Jean P. R. E. v. Berryhill
Case No. 17-cv-1988 (TNL)
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