TOBELER

Filing 60

ORDER - Plaintiff's # 57 Supplemental motion for fees is GRANTED in the amount of $741.86. Signed by Magistrate Judge Valerie P. Cooke on 3/2/2015. (Copies have been distributed pursuant to the NEF - DRM)

UNITED STATES DISFTRICT COURT

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DISTRICT OF NEVADA

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CRAIG TOBELER,

3:09-cv-00309-LRH-VPC

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Plaintiff,
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v.
ORDER
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,

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Defendants

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Before the court is plaintiff’s motion for supplemental attorney fees (#57) in a case
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concerning Social Security benefits. The action was referred by the Honorable Larry R. Hicks,

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United States District Judge, to the undersigned Magistrate Judge pursuant to 28 U.S.C. §

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636(b)(1)(B) and Local Rules IB 1-4. Defendant opposes a portion of the fees plaintiff requests

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(#58). Plaintiff replied (#59). For the reasons discussed herein, the court grants plaintiff’s motion in

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the amount of $741.86.
I.

BACKGROUND

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On June 10, 2009, Plaintiff Craig Tobeler (“plaintiff”) filed a complaint for judicial review of

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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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2012, Judge Reed denied the fees motion. (#41). Plaintiff appealed to the Ninth Circuit. On April

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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). After considering the arguments of the parties regarding the exact amount,

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this court awarded fees on October 21, 2014 (#56). Therein, the court provided deadlines, with

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which plaintiff complied, for filing a motion for supplemental fees as permitted by INS v. Jean. This

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order follows.
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II.

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LEGAL STANDARD

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Under INS v. Jean, 496 U.S. 154, 161 (1990), an award of attorney fees under the EAJA

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includes expenses incurred and reasonable hours expended on litigating the EAJA fees motion.

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Therefore, the prevailing party may file a supplemental fees motion, and the court may award

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additional fees thereupon. As with the underlying fees motion, the touchstone of the supplemental
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award is reasonableness. See 28 U.S.C. § 2412(d)(2)(A); Hensley v. Eckerhart, 461 U.S. 424, 434

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(1983) (“The district court . . . should exclude from this initial fee calculation hours that were not

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‘reasonably expended.’”).

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Calculation of reasonable attorneys’ fees is a two-step process. First, the court computes the

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“lodestar” figure, which multiplies a reasonable hourly rate by the number of hours reasonably

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expended in the litigation. Carter v. Caleb Brett LLC, 757 F.3d 866, 868 (9th Cir. 2014); see also

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Agster v. Maricopa Cnty., 486 F. Supp. 2d 1005, 1020 (D. Ariz. 2007) (“The Court will use the

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lodestar method to determine the amount of supplemental fees.”).

The lodestar amount is

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presumptively correct. Mendez v. Cnty. of San Bernadino, 540 F.3d 1109, 1129 (9th Cir. 2008).
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Second, and despite the presumption, the court may modify the lodestar amount. Carter, 757 F.3d at

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869 (citing Quesada v. Thomason, 850 F.2d 537, 539 (9th Cir 1988) for the relevant factors, as first

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articulated in Kerr v. Screen Extras Guild, Inc., 526 F.2d 67 (9th Cir. 1975)). In this District, the

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Kerr factors are incorporated into Local Rule 54-16.

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III.

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DISCUSSION

Plaintiff’s motion seeks $1,864.16, and plaintiff’s counsel has included a timesheet

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identifying the tasks associated with litigating the original motion.

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defendant is plaintiff’s inclusion of three entries, dated between July 24 and 28, “for tasks related to

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The sole issue raised by

the original EAJA motion, filed on July 25, 2014.” (#58 at 2.) “The demand for such fees—in the

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absence of any explanation by counsel—is inadequately explained.” (Id.) Accordingly, defendant

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seeks a reduction of $380.44. (Id.) Plaintiff concedes that the tasks should have been included in

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the original motion, but seeks these fees on the basis that they are not duplicative. (#59 at 2.)

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The court orders as follows. First, the court reduces the award by $380.44. Plaintiff

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counsel’s lack of diligence in preparing the original fees motion is not an appropriate basis for
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granting the omitted fees at this juncture, even if the fees are not duplicative. Exclusion of those

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hours deprived defendant and the court an ability to review those tasks in context of the earlier

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award.

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As such, it would be unfair to thoughtlessly rubberstamp the requests at this time.

Moreover, the court’s earlier fee award provided robust compensation to plaintiff’s attorneys for the

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results they obtained.

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Second, the court will impose an additional reduction to the supplemental request because the

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lodestar amount does not appropriately reflect “[t]he novelty and difficulty of the questions

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involved[.]”

LR 54-16(b)(3)(C).

In total, plaintiff seeks 7.5 hours for reviewing defendant’s

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opposition (#54), and preparing the reply (#55). Yet the five-page brief discussed very little in terms
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of defendant’s arguments and applicable law, neither of which were complex. In fact, it is fair to

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characterize the issues as elementary. Plaintiff’s reply was comprised of tit-for-tat arguments that

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failed, even remotely, to aid plaintiff’s fees request.

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consisted of counsel’s opinions about the Ninth Circuit’s mediation program.

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The entirety of page four, for example,
She chided the

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Commissioner at length for the extent to which the Agency mediates (in her view). Not a second of

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preparing that “argument” was reasonably expended. Accordingly, in light of the product and

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descriptions of time, the court reduces the fee amount by an additional half. Plaintiff shall receive

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supplemental fees in the amount of $741.86.

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IV.

CONCLUSION

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Plaintiff seeks $1,864.16 in supplemental fees. For the reasons above described, the court
reduces the amount as described and, therefore, awards $741.86.
IT IS THEREFORE ORDERED that plaintiff’s supplemental motion for fees (#57) is
GRANTED in the amount of $741.86.

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DATED: March 2, 2015.
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______________________________________
UNITED STATES MAGISTRATE JUDGE

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