Trivino v. Social Security Administration
Filing
41
MEMORANDUM OPINION AND ORDER by District Judge Martha Vazquez GRANTING IN PART 36 First MOTION for Attorney Fees . See Order for Specifics. (gr)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW MEXICO
CLAUDE EDWARD TRIVINO,
Plaintiff,
v.
Civ. No. 15‐102 MV/GJF
CAROLYN COLVIN,
Acting Commissioner of Social Security,
Defendant.
MEMORANDUM OPINION AND ORDER
THIS MATTER comes before the Court on Plaintiff’s “Opposed Motion for Equal
Access to Justice Award of Attorney’s Fees and Costs” (“Motion”) [ECF No. 36], filed on
October 31, 2016. The Commissioner responded on November 14, 2016. ECF No. 38. Plaintiff
replied on November 16, 2016. ECF No. 39. Plaintiff moves the Court for an award of
$10,117.11 in attorney fees and costs under EAJA. Pl.’s Mot. 2-3, ECF No. 36. Having
reviewed the record, the briefing, and the relevant law, and being otherwise fully advised in the
premises, the Court finds that the Motion should be granted in part.
I.
STANDARD OF REVIEW
The Equal Access to Justice Act (“EAJA”) provides for an award of attorney fees to a
plaintiff when: (1) she is a prevailing party, (2) the position of the United States was not
substantially justified, and (3) no special circumstances would make the award unjust. 28 U.S.C.
§ 2412(d)(1)(A); Hackett v. Barnhart, 475 F.3d 1166, 1172 (10th Cir. 2007). However, the fees
awarded should in all cases be “reasonable.” Comm’r, INS v. Jean, 496 U.S. 154, 161 (1990);
Hackett, 475 F.3d at 1168. “[O]nce the determination has been made that the government’s
position was not substantially justified, then the court should determine what fee is merited for
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all aspects of the litigation that deal with creating a benefit to the claimant.” Gallaway v. Astrue,
Nos. 08-5080, 08-5082, 297 F. App’x 807, 809, 2008 WL 4726236, at *2 (10th Cir. Oct. 28,
2008) (unpublished) (citing Jean, 496 U.S. at 161). Determining the reasonableness of the
number of hours billed lies within the Court’s discretion. Hensley v. Eckerhart, 461 U.S. 424,
437 (1983) (interpreting attorney fees request under 42 U.S.C. § 1988); see also Jean, 496 U.S.
at 161 (explaining that once a litigant has established eligibility for fees under the EAJA, “the
district court’s task of determining what fee is reasonable is essentially the same as that
described in Hensley”).
II.
ANALYSIS
“In awarding fees under the EAJA, [courts] have a special responsibility to ensure that
taxpayers are required to reimburse prevailing parties for only those fees and expenses actually
needed to achieve the favorable result.” Role Models Am., Inc. v. Brownlee, 353 F.3d 962, 975
(D.C. Cir. 2004). The Tenth Circuit recognizes that attorneys typically do not bill a client for
every hour expended in litigation, and they should exercise “billing judgment” regarding the
amount of hours actually billed. Ellis v. Univ. of Kan. Med. Ctr., 163 F.3d 1186, 1202 (10th Cir.
1998) (citing Hensley, 461 U.S. at 437). To show appropriate billing judgment, an attorney
should make a good-faith effort to exclude those hours from the request that are excessive,
redundant, or otherwise unnecessary. Id. The Court has a corresponding obligation to exclude
hours “not reasonably expended” from the calculation. Id. The Tenth Circuit has directed the
district courts to approach this reasonableness inquiry “much as a senior partner in a private law
firm would review the reports of subordinate attorneys when billing clients.” Robinson v. City of
Edmond, 160 F.3d 1275, 1281 (10th Cir. 1998) (quoting Ramos v. Lamm, 713 F.2d 546, 555
(10th Cir. 1983)).
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In this case, Plaintiff requests $10,117.11 for 53.1 hours of work total, of which 45.85
hours was completed in 2015 at $190 per hour and 7.25 hours was performed in 2016 at $192 per
hour. Pl.’s Mot. Ex. 2 at 3. The figure also incorporates postage costs of $13.61. Id. The
Commissioner objects only to the number of hours requested. See Def.’s Resp. 1-3, ECF No. 38.
She does not challenge the hourly rates, nor does she argue that her position was substantially
justified. Id. She asks the Court instead to exercise its discretion to reduce the number of hours
by approximately ten, for a maximum fee award of $8,200.
Id. at 1.
Furthermore, the
Commissioner “contends that counsel’s overall time spent on this matter was excessive given the
fairly routine nature of this disability appeal.” Id. at 2. She then details the following six billing
entries as warranting reduction or excision:
(1) April 16, 2015 – Thirty (30) minutes to review Answer;
(2) September 18 - October 16, 2015 – Twelve hours spent on a reply brief
that actually exceeded the length of the Commissioner’s Response;
(3) October 6, 2015 – Thirty (30) minutes relating to Plaintiff’s Motion for an
Extension of Time;
(4) October 17, 2015 – Thirty (30) minutes for reviewing the docket, review
the file, prepare and submit notice of briefing complete;
(5) April 28, 2016 – 1.5 hours to review magistrate judge’s Proposed Findings
and Recommended Disposition (“PFRD”);
(6) 2016 (unspecified) – One hour for numerous telephone calls with client.
Id. at 2-3 (citing Pl.’s Mot. Ex. 2 at 1-3).
The Court finds that while the time incurred by counsel of 53.1 hours is slightly more
than some courts have noted is the average amount of time spent on a social security case, see
Hayes v. Sec. of Health and Human Servs., 923 F.2d 418, 422 (6th Cir. 1990) (finding that 30 to
40 hours was the average amount of time spent on a social security case), the fees are still within
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the range of reasonable time. See Carlson v. Astrue, 500 F. Supp. 2d 1174, 1177 (D. Kan. 2007)
(53.25 hours was reasonable); Harris v. Barnhart, 259 F.Supp.2d 775, 778 (E.D. Wis. 2003)
(noting that courts in that circuit had approved fees in the range of 50 to 66 hours); see also
Palmer v. Barnhart, 227 F.Supp.2d 975, 978 (N.D. Ill. 2002) (48.2 hours reasonable). But see
Chisholm v. Astrue, No. 13-1276-SAC, 2015 WL 474345, at *1-2 (D. Kan. Feb. 5, 2015)
(reducing time from 54.55 hours to 43.8 hours); Peoples v. Shalala, 1995 WL 462213, at *2 (D.
Kan. July 27, 1995) (where nothing about the case appeared to warrant an “extra” expenditure of
time, court would not permit plaintiff's counsel to recover more than the “typical” amount of
hours expended - between thirty and forty). In this matter, Plaintiff’s attorney successfully
identified and briefed numerous grounds for relief and her client’s circumstances and case were
clearly atypical. Thus, with the exception of clerical or blatantly excessive fees, the Court finds
no reason to arbitrarily reduce the fee amount to $8,200.
Rather, the Court will reduce Plaintiff’s request only insofar as it contains entries that are
disallowable or clearly excessive. The first example of these is billing to file motions for
extension. Time spent seeking such extensions is generally not compensable under EAJA. See
Burr v. Bowen, 782 F.Supp. 1285, 1290 (N.D. Ill. 1992) (motions for extensions of time for
plaintiff’s attorney’s convenience disallowed); Carter v. Astrue, No. 6:10-CV-06099, 2012 WL
1711687, at *2 (W.D. Ark. May 15, 2012). Although exceptions to the general prohibition exist
and may be properly allocated within the trial court’s discretion, the Court sees no reason to do
so here. Thus, the total fee award is reduced by one hour (at the 2015 rate of $190) for time
relating to motions for extension, billed on October 6 and October 17, 2015.
Additionally, the Court will reduce three other fee requests that appear unreasonable.
The underlying question in awarding attorney fees is whether the claimed fees are reasonable,
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and district courts have “discretion in determining the amount of a fee award.” Hensley, 461
U.S. at 437. First, the April 16, 2015, entry for reviewing Defendant’s Answer [ECF No. 9] shall
be decreased from 0.5 hours to 0.1. This represents a reasonable amount of time to bill a client
for the review of a three-page, virtually boilerplate document that the Court itself read and
understood in under two minutes. Second, the Court will eliminate the 0.5 hour entry dated
October 17, 2015, for reviewing the docket and submitting a notice of briefing complete. Given
the protracted time billed for drafting and filing Plaintiff’s reply on the same date - which the
Court is not reducing - it seems unreasonable to seek further costs for reviewing a docket that
would invariably be reviewed during the twelve hours spent drafting the reply, or for filing a
notice of briefing complete, which is fundamentally a clerical task. Third, the Court will reduce
the award for reviewing the magistrate judge’s 11-page PFRD, which was entirely favorable to
Plaintiff, from 1.5 hours to 0.5 hours. As a result of these three modifications, the EAJA award
to Plaintiff’s counsel is further reduced 1.9 hours for excessive billing (0.9 hours at the 2015 rate
of $190, and 1 hour at the 2016 rate of $192).
Lastly, the Court must excise one request for lack of specificity. Namely, Plaintiff’s
attorney seeks 1.0 hour of fees for “numerous telephone conversations with client regarding
status.” Pl.’s Mot. Ex. 2 at 3. “[A] district court may discount requested attorney hours if the
attorney fails to keep meticulous, contemporaneous time records that reveal all hours for which
compensation is requested and how those hours were allotted to specific tasks.” Robinson v. City
of Edmond, 160 F.3d 1275, 1281 (10th Cir. 1998) (internal citation and quotation marks
omitted).
Here, the request for fees makes no mention of specific dates or lengths of
conversations between attorney and client. Clearly, by making a generic reference to 2016 – and
only to 2016 – the record cannot be said to be either meticulous or contemporaneous.
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Consequently, the Court finds that the EAJA award to Plaintiff’s attorney shall be reduced by
one hour (at the 2016 rate of $192).
Having reviewed the parties’ briefing and applicable case law, the Court finds that
Plaintiff’s Motion [ECF No. 36] should be GRANTED IN PART and that EAJA fees shall be
awarded for a total of 49.2 hours. Of these, 43.95 hours shall be payable at the 2015 rate of $190
per hour, and 5.25 shall be payable at the 2016 rate of $192 per hour. Plaintiff shall also receive
$13.61 for postage fees.
IT IS THEREFORE ORDERED that Plaintiff Claude Edward Trivino is authorized to
receive $9,372.11 for payment to his attorneys for services before this Court, as permitted by the
Equal Access to Justice Act, 28 U.S.C. § 2412, and in accordance with Manning v. Astrue, 510
F.3d 1246, 1255 (10th Cir. 2007).
IT IS FURTHER ORDERED that if Plaintiff’s counsel is ultimately granted attorney
fees pursuant to 42 U.S.C. § 406(b) of the Social Security Act, counsel shall refund the smaller
award to Plaintiff pursuant to Gisbrecht v. Barnhart, 535 U.S. 789, 796 (2002) (“Congress
harmonized fees payable by the Government under EAJA with fees payable under § 406(b) out
of the claimant’s past-due Social Security benefits in this manner: Fee awards may be made
under both prescriptions, but the claimant’s attorney must refun[d] to the claimant the amount of
the smaller fee”) (internal quotation marks omitted).
IT IS SO ORDERED.
________________________________________
MARTHA VAZQUEZ
UNITED STATES DISTRICT JUDGE
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