Lee v. Saul

Filing 43

ORDER granting in part 38 Motion for Attorney Fees. See Order for details. (Written Opinion) Signed by Magistrate Judge Katherine M. Menendez on 10/1/2021. (BJP)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Xai Moua L.,

No. 20-cv-692 (KMM)

Plaintiff,
v.

ORDER

Kilolo Kijakazi, Acting Commissioner of
Social Security,
Defendant.
This matter is before the Court on Plaintiff’s Counsel’s Petition for Attorney Fees under
the Equal Access to Justice Act (“EAJA”). [ECF No. 38]. Plaintiff’s counsel requests an award
of $10,354.76 in fees under the EAJA for 52 hours of work in connection with this case. In
response, the Commissioner does not suggest that an award of fees is inappropriate, but argues
that the amount of the fee sought is unreasonable. [ECF No. 41]. For the reasons that follow, the
Court grants Plaintiff’s Counsel’s Petition, in part, and awards $8,960.85 in attorney’s fees.
In relevant part, the EAJA provides that “a court shall award to a prevailing party other
than the United States fees and other expenses … 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). The statute requires the party seeking an award of fees and other
expenses to file an application within thirty days of the final judgment. Id. § 2412(d)(1)(B). The
applicant must show that she is the prevailing party and is eligible to receive an award of fees. Id.
In addition, the application must show “the amount sought, including an itemized statement from
any attorney … appearing on behalf of the party stating the actual time expended and the rate at
which fees … were computed.” Id.

1

Plaintiff’s Counsel filed the petition within thirty days of the entry of judgment, so the
request is timely. Counsel has also shown that Ms. L is a prevailing party. Youness v. Berryhill,
No. CV 17-4108 (DSD/BRT), 2018 WL 4218805, at *1 (D. Minn. Sept. 5, 2018) (“A party who
obtains a sentence-four remand, such as Plaintiff, qualifies as a ‘prevailing party’ under the
EAJA.”). Further, they have shown that Ms. L’s net worth did not exceed $2,000,000 when this
case was filed, so she is eligible to receive an EAJA award. Id. The Commissioner does not
contest the propriety of a non-excessive fee award, which the Court construes as a concession
that his position in the litigation was not substantially justified. See id. (citing Theis v. Astrue,
828 F. Supp. 2d 1006, 1008 (E.D. Ark. 2011) (declining to discuss substantial justification where
the Commissioner conceded that an award of fees was appropriate). On this record, the Court
concludes that an award of EAJA fees in this case is appropriate.
The only issue remaining is the reasonableness of the fees requested. As noted, Plaintiff’s
counsel seeks reimbursement for 52 hours of attorney work, at a rate of $199.13 per hour, for a
total award of $10,354.76. The Commissioner argues this request is unreasonable and suggests
that the Court should award fees for no more than 35 hours of attorney work. As a result, the
Commissioner suggests that the award in this case be reduced to $6,969.55.1 [ECF No. 41 at 7–
8].
Attorney’s fees requested under the EAJA must be reasonable. See 28 U.S.C.
§ 2412(d)(2)(A). The requesting party must exclude “excessive, redundant, or otherwise
unnecessary” hours from their petition. Hensley v. Eckerhart, 461 U.S. 424, 434 (1983). “[T]he

1

The Commissioner does not object to the hourly rate of $199.13, requested by the
Plaintiff. [ECF No. 41 at 4]. The Court finds that Plaintiff’s counsel has established that this
adjusted hourly rate is appropriate. [ECF No. 38, ¶ 5].

2

Court has a great deal of discretion to adjust the requested fees in light of the objections raised
[by the adverse party].” Magwood v. Astrue, 594 F. Supp. 2d 557, 562 (E.D. Pa. 2009).
First, the Commissioner argues that the award should be reduced because Plaintiff’s
Counsel’s request for 52 hours deviates from what the Commissioner calls “[t]he 20 to 40 hour
guideline,” a purported average for EAJA awards. [ECF No. 41 at 3 (citing Coleman v. Astrue,
No. C05-3045, 2007 WL 4438633, at *3 (N.D. Iowa Dec. 17, 2007))]. Although the Court might
consider “the usual number of hours for similar cases,” Johnson v. Barnhart, No. 03-0054-CVW-REL-SSA, 2004 WL 213183, at *1 (W.D. Mo. Jan. 13, 2004)), “[a]wards just outside [the 20
to 40 hour] range are also not uncommon,” Dianna L. B. v. Saul, No. 19-CV-2561 (TNL), 2021
WL 733995, at *2 (D. Minn. Feb. 25, 2021) (collecting cases), and the Court declines to find
Plaintiff’s counsel’s hours were unreasonable simply for being greater than average, especially in
a fact-intensive inquiry such as this. Barbara M. v. Saul, No. 18-CV-1749 (TNL), 2020 WL
2731162, at *2 (D. Minn. May 26, 2020) (“[I]n every case, the Court considers the particular
facts, complexity of the case, and the type of work performed.”); Vicky K. v. Saul, No. 19-CV01502 (ECW), 2021 WL 2472820, at *4 (D. Minn. June 17, 2021) (“[T]he Court does not view
more than 40 hours as per se unreasonable.”); see also Patricia A. L. v. Saul, No. CV 19-1769
(BRT), 2021 WL 806370, at *2 (D. Minn. Mar. 3, 2021) (collecting cases awarding between 77
to 200 hours).
The Commissioner similarly argues Plaintiff’s attorney “routinely” overbills for routine
file review, and that this Court has reduced the hours awarded to Mr. Osterhout for such cause
before and should do so again. [ECF No. 41 at 4–5]. Rather than focus on this case, this
argument targets past cases involving unrelated plaintiffs, records, and errors. While previous
decisions may help generally guide future ones, the Commissioner has cited, and the Court can

3

find no precedent to conclude that previous decisions reducing Mr. Osterhout’s requested fees in
an unrelated case carry over to the case at hand. Accordingly, the Court declines to follow the
Commissioner’s proposed path, as “[t]he amount of the fee, of course, must be determined on the
facts of each case,” Hensley, 461 U.S. at 429, not the facts of others.
Finally, the Commissioner argues that Plaintiff’s attorney billing a total of 24.6 hours for
reviewing the file was excessive. [ECF No. 41 at 6–7]. Most notably, Plaintiff’s attorney spent
three consecutive, almost eight-hour days reviewing the 1341-page Administrative Record,
followed by another two days drafting and editing the opening summary-judgment brief for a
total of 39.4 hours. [ECF No. 39-1]. For an experienced practitioner handling Social Security
disability appeals like Mr. Osterhout, the Court finds spending almost five full days reviewing
the record and drafting the opening brief to be slightly excessive. The Court also notes that
several of the time entries between January 21, 2020 and December 8, 2020 are batched entries;
multiple tasks are listed for each day, and a corresponding total amount of time is reflect, but the
records do not indicate how much time was spent on each task. This makes the Court’s task in
assessing the reasonableness of the fee request more difficult. In light of these observations, the
Court finds that 45 hours of attorney work is reasonably compensable for this matter.
An award of 45 hours at Plaintiff’s counsel’s rate of $199.13 per hour results in a total of
$8,960.85, which the Court finds to be a reasonable award of attorney’s fees in this case. This is
consistent with other awards in Social Security Cases in this District.
Based on the foregoing discussion, the Court enters the following Order.
1. Plaintiff’s Counsel Petition for Attorney Fees Under the Equal Access to Justice Act
[ECF No. 38] is GRANTED IN PART.

4

2. Plaintiff is awarded $8,960.85 in reasonable attorney fees, subject to offset by any
preexisting debt that Plaintiff owes to the United States.
3. This EAJA award shall be made payable to the Plaintiff and mailed to Plaintiff’s counsel.

IT IS SO ORDERED.
Date: October 1, 2021
s/Katherine Menendez
Katherine Menendez
United States Magistrate Judge

5