Gozum v. Colvin

Filing 19

ORDER. IT IS HEREBY ORDEREDthat 14 Gozum's motion for attorney's fees and costs is GRANTED in part: the Commissioner is directed to send Gozums attorney, Mark A. Rouse, $6,120.15, less any applicable processing fees allowable by statute. The Clerk of Court is directed to enter judgment accordingly and CLOSE THIS CASE. Signed by Judge Jennifer A. Dorsey on 8/8/17. (Copies have been distributed pursuant to the NEF - ADR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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Jericho Gozum,

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Plaintiff

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Case No.: 2:16-cv-01248-JAD-PAL
Order Granting Attorney’s Fees

v.

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[ECF No. 14]

Carolyn W. Colvin, Acting
Commissioner of Social Security,

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Defendant

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Jericho Gozum brought this action for judicial review of the Commissioner of Social

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Security’s final decision denying his application for disability insurance benefits under Title II of the

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Social Security Act (“SSA”).1 After I granted Gozum’s stipulated motion under sentence 4 of 42

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U.S.C. § 405(g) to remand the case to the Social Security Administration for further proceedings,2

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Gozum filed this motion for attorney fees and expenses under the Equal Access to Justice Act

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(“EAJA”), 28 U.S.C. § 2412.3 I grant Gozum’s motion in part and award a total of $6,120.15 in fees

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and costs.
Discussion

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The EAJA authorizes the court to “award to a prevailing party other than the United States

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fees and other expenses . . . incurred by that party in any civil action . . . unless the court finds that

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the position of the United States was substantially justified or that special circumstances make an

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award unjust.”4 The district court has discretion to award attorney’s fees under the EAJA with no

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ECF No. 1.

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ECF No. 9 (motion); ECF No. 11 (stipulation); ECF No. 12 (order).

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ECF No. 14. Gozum originally sought $6,052.80 in fees at an hourly rate of $194 for 31.2 hours
worked, but reduced his demand to $5,981.04 in his reply after conceding a maximum allowable hourly
rate of $191.70.
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28 U.S.C. § 2412(d)(1)(A); see also Corbin v. Apfel, 149 F.3d 1051, 1053 (9th Cir. 1998); Meier v.
Colvin, 727 F.3d 867, 870 (9th Cir. 2013).

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limit aside from a statutory hourly-rate cap.5

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Federal courts assess the reasonableness of fee requests, including requests in social security

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cases, using the “lodestar” method.6 “To calculate the lodestar amount, the court multiplies “the

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number of hours reasonably expended on the litigation . . . by a reasonable hourly rate.”7 The court

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then may adjust the lodestar upward or downward based on “a host of reasonableness factors,

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including the quality of representation, the benefit obtained . . . , the complexity and novelty of the

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issues presented, and the risk of nonpayment.”8

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The Commissioner does not contend that the agency’s position was substantially justified,

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nor does it contest the $465 Gozum seeks in costs. Rather, the Commissioner argues that Gozum

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“should not be compensated for over 30 hours to obtain the favorable results here,” due to: (1) lack

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of complexity and novelty of the issues; (2) the inclusion of a factual summary where “[t]his court’s

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case management order does not require [one]”; and (3) “overbilling” for time spent reviewing the

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administrative record, because Gozum’s attorney represented him before the ALJ and the Appeals

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Council and as a result, should have already been “quite familiar” with the record.9 The

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Commissioner consequently seeks a 9.45-hour haircut to Gozum’s fee petition, consisting of a 50

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percent reduction of the 6.5-hour billing entry for reviewing the record and preparing a factual

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summary, and a 6.2-hour reduction to the 8.2-hour entry for “[r]esearch; [and] begin drafting brief.”10

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The reductions would result in an adjusted award of $4,169.48 for “21.95 hours of work billed

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28 U.S.C. § 2412(d)(2)(A); Sampson v. Chater, 103 F.3d 918, 921 (9th Cir. 1996); Atkins v. Apfel, 154
F.3d 986, 989 (9th Cir. 1998).

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Costa v. Comm’r, 690 F.3d 1132, 1135 (9th Cir. 2012).

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Id. (quoting Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)).

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Stetson v. Grissom, 821 F.3d 1157, 1166–67 (9th Cir. 2016) (internal quotation marks omitted).

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See ECF No. 15 at 2–4.

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Id. at 4 (quoting ECF No. 14-1 at 3).
Page 2 of 4

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correctly at $191.70 per hour.”11

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I am unpersuaded by the Commissioner’s challenge to the 6.5-hour billing entry for

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reviewing the record and preparing a factual summary. “Social security disability cases are often

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highly fact-intensive and require careful review of the administrative record, including complex

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medical evidence.”12 The record in this case was voluminous and consisted of nearly 2,300 pages of

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outpatient hospital records, medical progress notes, treatment records, lab and radiology results,

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physical and mental assessments, VA records, and third-party function reports.13 Gozum’s attorney,

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Mark Rouse, undoubtedly sifted through this lengthy, fact-intensive record to prepare the 25-page

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brief that ultimately resulted in the remand of the matter for further proceedings. The complexity of

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handling social security disability cases, the length of the record in this case, and the favorable

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outcome that Rouse achieved, I find that Gozum’s request of 6.5 hours to review the administrative

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record and prepare a nearly 15-page background section is reasonable.

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The Commissioner’s challenge to Rouse’s 8.2-hour billing entry for time spent researching

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and beginning to draft the brief has merit, however. When this billing entry is combined with

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Gozum’s 8.7-hour entry for “[a]dditional research; edit and finalize brief,” it is unclear how many of

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those 16.9 total hours were spent performing the individual tasks of researching, drafting, editing,

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and finalizing the brief.14 And while it might be appropriate to spend up to 16.9 hours performing

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some of these tasks, it would not be appropriate to spend up to 16.9 hours performing others. This is

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especially true considering Rouse’s level of experience and the age of the cases he cites in his brief.

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Rouse claims he has represented over 100 claimants before the Administration in the past two-and-a-

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Id. The Commissioner’s math is a little off.

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Costa, 690 F.3d at 1137, n.1.

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See ECF Nos. 8-1 through 8-4 (electronic administrative records, parts 1–5).

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See ECF No. 14-1 at 3.

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Page 3 of 4

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half years,15 and the motion to remand cites cases that are no newer than 2007.16 Therefore, on the

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record before me, I cannot conclude that all of the 16.9 hours that Rouse block-billed were

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reasonable.

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“[A] district court can impose a reduction of up to 10 percent—a ‘haircut’—based purely on

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the exercise of its discretion and without more specific explanation.”17 I thus grant Gozum’s motion

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in part. I reduce the total award by 1.7 hours, which represents roughly a 10 percent discount to the

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16.9 hours of block-billed time Rouse spent researching, drafting, editing, performing additional

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research, and finalizing his brief. Rouse is awarded $5,655.15 in fees for 29.5 hours of work

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performed at an hourly rate of $191.70 under the EAJA, plus $465 in costs for a total award of

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$6,120.15.

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Conclusion

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Accordingly, with good cause appearing and no reason to delay, IT IS HEREBY ORDERED

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that Gozum’s motion for attorney’s fees and costs [ECF No. 14] is GRANTED in part: the

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Commissioner is directed to send Gozum’s attorney, Mark A. Rouse, $6,120.15, less any applicable

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processing fees allowable by statute. The Clerk of Court is directed to enter judgment accordingly

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and CLOSE THIS CASE.

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DATED August 8, 2017.

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_________________________________
Jennifer A. Dorsey
United States District Judge

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Id. at 1–2.

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See ECF No. 9.

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Costa, 690 F.3d at 1136 (quoting Moreno v. City of Sacramento, 534 F.3d 1106, 1112 (9th Cir. 2008)).

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