TOBELER
Filing
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ORDER granting 51 motion for fees and costs in the amounts of $16,713.43 and $1,378.51; directing defendant, subject to any offset, to send payment to Mr. Boyden. (See order for details re objections and the filing of a supplemental motion for fees.) The Clerk shall close this case if plaintiff does not timely file the supplemental motion as described. Signed by Magistrate Judge Valerie P. Cooke on 10/21/2014. (Copies have been distributed pursuant to the NEF - KR)
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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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CRAIG TOBELER,
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Plaintiff,
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v.
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CAROLYN W. COLVIN,
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Commissioner of Social Security,
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Defendant.
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____________________________________)
3:09-cv-00309-LRH-VPC
ORDER
October 21, 2014
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Before the court is plaintiff’s motion for attorney fees (#51)1 in a case concerning Social
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Security benefits. Defendant opposes a portion of the fees plaintiff seeks. (#54). The action was
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referred by the Honorable Larry R. Hicks, United States District Judge, to the undersigned
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Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rules IB 1-4. For the reasons
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discussed below, the court grants plaintiff’s motion for fees and costs in the respective amounts of
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$16,713.43 and $1,378.51.
I. FACTUAL AND PROCEDURAL HISTORY
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On June 10, 2009, Plaintiff Craig Tobeler (“plaintiff”) filed a complaint for judicial review of
the Social Security Commissioner’s (“defendant”) denial of his applications for Social Security
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benefits. (#1). Magistrate Judge Robert McQuaid entered a Report and Recommendation to District
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Judge Edward Reed on October 12, 2010 in favor of defendant. (#26). Plaintiff objected, and Judge
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Reed sustained the objection and ordered remand to the Agency. (#29). Thereafter, plaintiff moved
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for fees under 28 U.S.C. § 2412, the Equal Access to Justice Act (“EAJA”). (#32). On April 17,
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Refers to the court’s docket numbers.
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2012, Judge Reed denied the fees motion. (#41). Plaintiff appealed to the Ninth Circuit. On April
14, 2014, the Ninth Circuit ruled in his favor and remanded for an award of fees as determined by
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the District Court. (#45). This action follows.
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II. DISCUSSION
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The EAJA provides attorney fees to the prevailing party in an action seeking review of an
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adverse Social Security benefits determination, unless the Agency’s position was substantially
justified. See 28 U.S.C. § 2412(d)(1)(A). The touchstone of the award is reasonableness. See id. §
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2412(d)(2)(A) (providing that recoverable fees and expenses include “reasonable attorney fees”);
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Hensley v. Eckerhart, 461 U.S. 424, 434 (1983) (“The district court . . . should exclude from this
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initial fee calculation hours that were not ‘reasonably expended.’”). To determine reasonableness,
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the court uses the lodestar method, under which the reasonable number of hours are multiplied by a
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reasonably hourly rate. Costa v. Comm’r of Soc. Sec. Admin, 690 F.3d 1132, 1135 (9th Cir. 2012).
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The lodestar amount is presumptively correct, but the court may modify the amount based on factors
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discussed in Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 70 (9th Cir. 1975) when the initial
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lodestar calculation inadequately reflects pertinent considerations. Mendez v. Cnty. of San
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Bernadino, 540 F.3d 1109, 1129 (9th Cir. 2008).
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The sole issue before the court is the amount of plaintiff’s fees under the EAJA. The parties
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agree to taxation of costs in the amount of $1,378.51, as provided by 28 U.S.C. § 1920.2 Relying on
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the lodestar method, plaintiff seeks fees in the amount of $16,989.91 for services rendered by lead
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counsel John Boyden and appellate counsel Linda Ziskin. (#51 at 10). Defendant contends that
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plaintiff’s motion unreasonably seeks payment for (1) certain tasks related to extension requests; (2)
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bill preparation by Ms. Ziskin; (3) Ms. Ziskin’s services that preceded federal court litigation by
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As defendant observes, plaintiff’s filings are somewhat unclear as to costs, but the correct amount appears to be
$1,378.51. (#54 at 2 n.2). Plaintiff agrees in reply (#55 at 6), and the court accepts this figure as correct.
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several months; (4) tasks that are vaguely described; (5) Ms. Ziskin’s duplicative review of the
record; (6) excessive time spent by Mr. Boyden and Ms. Ziskin discussing a mediation
questionnaire; and (7) excessive time Ms. Ziskin spent reviewing the Ninth Circuit’s order
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remanding this case. (#54 at 3-5). In total, defendant seeks a reduction of $2,045.70. (#54 at 5).
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Defendant requests reduction of 1.7 hours for time related to extension requests. (#54 at 3).
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Requests for Extension of Time.
The court finds a reduction unwarranted. The court granted several extensions in this case, to both
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parties, and in each instance the parties conferred and entered stipulations. Extensions in Social
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Security cases are not only routine in this district, but also are part of an attorney’s obligation to the
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client and thus are properly recoverable. E.g. Fouissi v. Astrue, No. 1:07cv0445 DLB, 2008 WL
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2018344, at *2 (E.D. Cal. May 6, 2008); Fortes v. Astrue, No. 08cv317 BTM(RBB), 2009 WL
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3007735, at *3 (S.D. Cal. Sept. 17, 2009). The court finds 1.7 hours a reasonable amount of time for
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these tasks, and therefore declines to reduce the award.
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2.
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Defendant next seeks a reduction of one hour for Ms. Ziskin’s preparation of the
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Bill Preparation.
supplemental time log and discussion of hours with Mr. Boyden. (#54 at 3). The court declines to
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reduce for this hour. Attorney time records should be compiled contemporaneously with the
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attorney’s work, and attorneys may not charge clients for overhead costs like maintaining time
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records. See Reyna v. Astrue, No. 1:09-cv-00719-SMS, 2011 WL 6100609, at *4 (E.D. Cal. Dec. 6,
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2011). However, certain billing tasks related to EAJA fees motion may be properly billable, as
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attorneys must review time logs for accuracy and ensure that the motion and logs reveal no
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privileged information. See Fortes, 2009 WL 3007735, at *4. In this instance, the court finds the
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one hour request reasonable, as the description suggests that Ms. Ziskin was preparing and ensuring
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the accuracy of the supplemental log, and also discussing with Mr. Boyden which hours would be
sought in the EAJA motion.
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Ms. Ziskin’s Pre-Litigation Hours.
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Defendant challenges .7 hours sought for Ms. Ziskin’s services in May 2009 (#54 at 3),
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which she described as reviewing the ALJ’s decision “for possible USDC complaint” and discussing
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possible case issues with Mr. Boyden. (#52-3 at 3). The court disagrees with defendant’s position.
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As the Supreme Court has explained, “some of the services performed before a lawsuit is formally
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commenced by the filing of a complaint are performed ‘on the litigation.’” Webb v. Bd. of Educ. of
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Dyer Cnty., Tenn., 471 U.S. 234, 243 (1985); see also Berman v. Colvin, 2014 WL 4809886, at *4
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(D. Nev. Sept. 29, 2014) (observing that pre-filing work may focus on contemplated district court
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litigation or the underlying administrative proceeding). Ms. Ziskin’s entries indicate a focus on this
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action, rather than the remaining work left in the administrative proceeding. Accordingly, the .7
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hours is recoverable under the EAJA.
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Defendant asks for a blanket ten percent reduction, in the amount of $930.63, because Ms.
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Ten Percent Reduction for Vagueness.
Ziskin’s entries for the Ninth Circuit appeal are allegedly “vague and inadequately explained.” (#54
at 3). In particular, defendant points to entries such as “prepare to write reply brief,” and “continue
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writing opening brief.” (#54 at 3). The reduction is not warranted because defendant
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mischaracterizes the time log through selective omission. For example, the entry in which Ms.
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Ziskin indicated she prepared to write the reply brief states in full: “prepare to write reply brief;
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review file and all briefs below; read, outline and annotate def’s brief.” (#52-4 at 1). For another,
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the full entry that begins “continue writing opening brief” indicates additional tasks: “research;
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discuss with outside counsel (no charge for second atty).” (#52-4 at 1). The court finds the
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descriptions sufficiently clear about the work that Ms. Ziskin performed, such that the court can
confidently determine that the amounts are reasonable. As defendant correctly states, the court has
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discretion to recommend a reduction of ten percent. See Costa, 690 F.3d at 1136. But it is not
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required to do so where the requested hours reasonable and the work is sufficiently described. The
court declines defendant’s request for the blanket reduction absent a more compelling rationale.
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Defendant argues for a reduction of 1.9 hours in which Ms. Ziskin reviewed defendant’s
Duplicative Hours.
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supplemental excerpts of the record in the Ninth Circuit appeal. (#54 at 4). Defendant so contends
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because Ms. Ziskin reviewed the entire record for 3.9 hours when preparing her opening brief two
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months prior, and the material was apparently identical. (#54 at 4). The court agrees with defendant
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that some reduction is merited. Where duplicative hours are unnecessary, a reduction in fees is
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proper. Moreno v. City of Sacramento, 534 F.3d 1106, 1113 (9th Cir. 2007). Yet as the Ninth
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Circuit has recognized, “sometimes ‘the vicissitudes of the litigation process’ will require lawyers to
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duplicate tasks.” Costa, 690 F.3d at 1136 (quoting Moreno, 534 F.3d at 1113). The court
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recognizes that an attorney cannot simply ignore the excerpts an opposing counsel references in its
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brief when preparing to draft a reply to the same, and it is unreasonable to expect that an attorney
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will remember every pertinent detail of a voluminous case record for two months. Accordingly, the
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court will reduce the award by one hour, in the amount of $184.32, to account for possible
redundancy.
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Mediation Questionnaire.
Defendant also contends that the 1.2 hours sought by Ms. Ziskin for completion and
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discussion of the Ninth Circuit’s mediation questionnaire3 is excessive, particularly given Ms.
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Mediation Questionnaire, http://cdn.ca9.uscourts.gov/datastore/uploads/forms/Mediation_Questionnaire.pdf.
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Ziskin’s expertise in Social Security cases. (#54 at 4). The court agrees with defendant. As the
form asks only for basic and brief case information, the court sees no reason that two experienced
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attorneys would be unable to complete the form in about thirty minutes. Accordingly, the court will
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reduce the award by $92.16, as defendant requests.
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Finally, defendant asks for a reduction of .7 hours, in the amount of $132.85, for Ms. Ziskin’s
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Review of the Ninth Circuit Order.
review of the Ninth Circuit’s order remanding this case for an award of fees and discussion with Mr.
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Boyden about further proceedings in this court. (#54 at 5). Defendant contends the order, at eight
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pages, is so short that any time over .5 hours is excessive. The court disagrees. The procedural
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history of the case indicates that defendant has strongly opposed an award of fees at every turn.
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Therefore, the court cannot find that the 1.2 hours Ms. Ziskin spent reviewing the appellate order
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and also anticipating with co-counsel what arguments defendant might raise in this action—
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presumptively with the intent to preemptively respond to those arguments—is excessive or
unreasonable. The court thus declines this request for reduction.
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III. CONCLUSION
Plaintiff seeks $16,989.91 in fees and $1,378.51 in costs. For the reasons above described,
the court finds proper a reduction of $276.48 in EAJA fees. Accordingly, the court grants plaintiff’s
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motion for fees and costs (#51) in the amounts of $16,713.43 and $1,378.51.
IT IS THEREFORE ORDERED that plaintiff’s motion for fees and costs (#51) is
GRANTED in the amounts of $16,713.43 and $1,378.51.
IT IS FURTHER ORDERED that, subject to any offset allowed under the Treasury Offset
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Program, as discussed Astrue v. Ratliff, 560 U.S. 586 (2010), defendant will send payment to Mr.
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Boyden.
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IT IS FURTHER ORDERED that if neither party objects to this Order within the period
allowed by Local Rule IB 3-1, plaintiff will have 10 additional days in which to file a supplemental
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motion for fees related to litigating this fees motion.
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IT IS FURTHER ORDERED that if either party objects to this Order, plaintiff will have 10
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days from the entry of the District Court’s decision relating to said objection in which to file a
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supplemental motion for fees.
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IT IS FINALLY ORDERED that the Clerk shall close this case if plaintiff does not timely
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file the supplemental motion as above described.
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DATED: October 21, 2014.
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______________________________________
UNITED STATES MAGISTRATE JUDGE
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