Serna v. Social Security Administration

Filing 30

ORDER granting in part and denying in part 27 Plaintiff's Opposed Motion for Attorney Fees by Magistrate Judge Gregory J. Fouratt. (sr)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW MEXICO
LORYNN D. SERNA,
Plaintiff,
v.

Civ. No. 16-1176 GJF

NANCY A. BERRYHILL, Acting
Commissioner of the Social Security
Administration,
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”), filed on February 13, 2018.
ECF No. 27. The Commissioner responded on February 27, 2018. ECF No. 38. Plaintiff did
not reply. Plaintiff’s counsel moves the Court for an award of $12,312.50 in attorney fees and
$413.61 for costs under EAJA. Pl.’s Mot. 2-3, ECF No. 27. Having reviewed the record, the
briefing, and relevant law, the Court finds that the Motion should be GRANTED IN PART and
DENIED 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,
297 F. App’x 807, 809 (10th Cir. 2008) (unpublished) (citing Jean, 496 U.S. at 161).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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A.

The Parties’ Positions

In this case, Plaintiff’s counsel requests $12,312.50 1 for 62.5 hours of work total, of
which 3 hours were completed in 2016 at $192 per hour, and 59.5 hours were completed in 2017
and 2018 at $197 per hour. Pl.’s Mot. Ex. 1 at 1-3. The figure does not include an additional
$413.61 that Plaintiff seeks for reimbursement of this case’s filing fee and for service of process
upon Defendant by certified mail. Id. at 2. “[I]n order to avoid a potential appearance of
ove[rr]eaching,” Plaintiff’s counsel has volunteered to reduce her fees by fifteen percent,
resulting in a final request for $10,633.07 in attorney fees. Id. at 2-3.
The Commissioner responds that “62.5 hours of attorney time” in this case “is excessive
and unreasonable.” Def.’s Resp. 3, ECF No. 28. She notes that Plaintiff has asked for 43.25
hours of fees for her initial brief, but emphasizes that the brief raised “only routine issues.” Id.
The Commissioner advances a similar argument concerning Plaintiff’s reply brief, for which
Plaintiff has asked for 14 hours of attorney fees. 2 Id. Generally, the Commissioner argues that
“[t]here was nothing out of the ordinary or especially complicated about any of Plaintiff’s
arguments that would set this case aside from any other Social Security disability appeal.” Id.
B.

The Attorney Fees in This Case Should Be Reduced

The Court concurs with the Commissioner that the instant request is both unreasonable
and excessive. The Court begins by noting that of the eighteen EAJA fee requests it has received
in the last two years, the two highest have been from Plaintiff’s counsel. Of the total of fourteen
EAJA fee requests submitted by attorneys other than Plaintiff’s counsel, the average time request
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Plaintiff’s counsel concludes that all 62.5 hours should be billed at the 2017-18 rate of $197 per hour, see Pl.’s
Mot. Ex. 1 at 3, ECF No. 27, but she apparently fails to consider that the first three hours of her work occurred in
2016. That error led Plaintiff to request $12,312.50, but based on the correct yearly pay rates, the amount would be
$12,297.50. See id.
2

Here, the Commissioner refers to the dispositive briefing in the case, rather than the briefs presently before the
Court.

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has been 29.5 hours, while the maximum time request has been for 36.5 hours of attorney time.
Among this group, the average EAJA fee sought was $4,756.11, and the maximum fee request
was $6,847.73. Plaintiff’s counsel, on the other hand, has submitted four EAJA fee motions to
this Court, two of which were stipulated and devoid of enumerated hours, and two of which
sought 53.1 and 62.5 hours respectively. The average of Plaintiff’s four requests has been
$8,292.62 in EAJA fees, and her maximum request - now before the Court - is an extraordinary
$12,312.50. Thus, Plaintiff’s counsel has not only sought higher EAJA fees than any other
practitioner before this Court, but indeed, seeks on average, 74 percent more EAJA fees than her
colleagues. And the Court is aware that Plaintiff has been put on notice by several judges in the
District of New Mexico that her billing practices result in excessive, unreasonable, or
impermissible fees. See, e.g., Rodriguez v. Berryhill, No. 15-CV-985 WPL, 2017 WL 3278944
(D.N.M. Aug. 1, 2017) (finding attorney fee request excessive and unreasonable, and reducing
attorney fees from a request of $9,292.80 to an award of $6220.80); Martinez v. Colvin, No. 15CV-806 LF, 2016 WL 9774938 (D.N.M. Nov. 30, 2016) (same finding, and reducing fees from a
$10,917.50 request to a $7,923.50 award); Villalobos v. Colvin, 15-CV-463 CG, 2016 WL
10179289 (D.N.M. July 12, 2016) (reducing fees from a $9,112.90 request to an $8,145.50
award based on counsel’s billing for clerical work, and comprehensively documenting the
repeated occasions where counsel has been admonished for doing the same by other judges in
the district); Montoya v. Colvin, 14-CV-836 LH/SMV, 2015 WL 13651170, at *3 (D.N.M. Dec.
16, 2015), report and recommendation adopted, 14-CV-836, 2016 WL 10592306 (D.N.M. Jan.
11, 2016) (finding attorney fee request excessive and unreasonable, and recommending a
reduction in attorney fees from a request of $16,101.70 to an award of $10,395.00).

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After reviewing counsel’s “Declaration of Time for EAJA Application” (“Declaration”)
the Court finds that fee reduction is warranted in three categories: (1) clerical work; (2) frivolous
work executed in opposition to this Court’s Order; and (3) excessive fees. The Court will
address each in turn.
1.

Clerical work

No award is appropriate for clerical work. Dalles Irrigation Dist. v. United States, 91
Fed. Cl. 689, 708 (2010) (“[T]he filing of pleadings is considered clerical work” and is not
compensable under EAJA); see Gatson v. Bowen, 854 F.2d 379, 381 (10th Cir. 1988)
(remanding EAJA fees petition and noting the distinction between work that is “clerical rather
than legal”); Sorenson v. Concannon, 161 F. Supp. 2d 1164, 1168-69 (D. Or. 2001) (reducing
EAJA fees request for work that was “purely clerical in nature”). Below is a table listing three
entries that qualify as clerical. The Court has included the amount of hours counsel billed
(“Claimed”) and the corresponding permissible fee award (“Compensable”). The total reduction
in time is 0.35 hours. See Pl.’s Mot. Ex. A at 2-3.
Date

Services Provided

Claimed

Compensable

01/17/17

Communication re motion, note order granting
motion to extend
Review docket, rev file, prepare and submit notice
of briefing complete

0.1

0

0.25

0

05/26/17

2.

Frivolous work

Next, the Court must reduce counsel’s request based on work expended in violation of
this Court’s Order. On March 9, 2017, the day before Plaintiff’s Motion to Remand was due,
Plaintiff filed two motions seeking an extension of the page limit imposed by the Local Rules of
Civil Procedure. ECF Nos. 13, 14. See D.N.M.LR-Civ. 7.5 (“the combined length of a motion

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and supporting brief[ ] must not exceed twenty-seven (27) double-spaced pages”). The Court
denied the motions [ECF Nos. 15, 16], but Plaintiff persisted in filing a motion and separate
memorandum in support that were a combined 33 pages.
The Court struck the offending documents and allowed Plaintiff to file her consolidated
and compliant Motion to Remand on March 13, 2017. See ECF No. 20. Throughout that
process, Plaintiff’s counsel edited and filed her original motion and memorandum in support in a
manner that violated this Court’s Order, and subsequently expended time consolidating and
editing the two documents down to a size that complied with the Local Rules. Clearly, efforts
expended on edits that violated this Court’s Order, and the subsequent edits counsel undertook to
correct her disregard for the same, cannot be said to be reasonable.

Excluding these

unreasonable hours results in a reduction of 7.25 hours. See Pl.’s Mot. Ex. A at 2-3.
Date

Services Provided

Claimed

Compensable

2/24/17

Edit brief

3.0

0

3/2/17

Edit

1.5

0

3/10/17

Final edit of brief

0.75

0

3/10/17

Write Motion for Remand

0.5

0

3/11/17

Severe edit of brief

1.5

0

3.

Excessive fees

The Court has an affirmative obligation to exclude hours “not reasonably expended” from
the calculation of attorney fees. See Ellis, 163 F.2d at 1202. The applicant bears the burden of
establishing entitlement to an attorney fee award, documenting the appropriate hours expended,
and showing that the hours are reasonable. See Hensley, 461 U.S. at 433. Essentially, this

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means that the applicant must “prove and establish the reasonableness of each dollar, each hour,
above zero.” Jane L. v. Bangerter, 61 F.3d 1505, 1510 (10th Cir. 1995) (internal quotation
marks omitted) (interpreting attorney fee requests under § 1988). Here, the Court has found
several entries that trigger its obligation to exclude.
First, the Court will eliminate an entry billed by counsel on May 25, 2017, as “rewrite
brief.” Pl.’s Mot. Ex. A at 3. Having already expended an atypical 11.75 hours on Plaintiff’s
Reply, the Court finds this “rewriting” of the Reply to be excessive. Therefore, the Court will
eliminate this entry, resulting in a reduction of 2.5 hours.
Next, the Court will reduce the entry of January 5, 2017, which counsel labels as
“[r]eview answer for unusual defense.” Id., Ex A. at 1. In this instance, counsel seeks 0.5 hours
compensation for reviewing a three page document, whose last page consists only of a signature
block and certificate of service. See id.; Def.’s Answer 1-3, ECF No. 6. In its two substantive
pages, the Court was able to ascertain whether or not an unusual defense existed in less than a
minute. The Court can expect no less from a seasoned social security law practitioner, and
therefore, will reduce this excessive entry from 0.5 to 0.1 hours, resulting in a reduction of 0.4
hours.
Lastly, the Court must reduce the excessive fee counsel seeks for drafting her motion and
memorandum in support. The Commissioner correctly observes that “Plaintiff’s attorney spent
43.25 hours drafting” her opening brief, and yet, “raised only routine issues.” Def.’s Resp. 3.
She also accurately notes that the Court remanded on only one of those routine issues - that the
administrative law judge (“ALJ”) had not properly evaluated the medical opinion of Dr. Maureen
McAndrews, Ph.D. Id. at 4. And despite expending an extraordinary amount of time developing
arguments for remand, Plaintiff’s counsel was still unable to accurately frame why the ALJ’s

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failure to evaluate Dr. McAndrews’s opinion necessitated remand. This Court observed as
much, lamenting that Plaintiff asked the Court “to accord controlling weight to Dr.
McAndrews’s opinion under the treating physician rule while ignoring the fact – demonstrated
by the record – that Dr. McAndrews never treated Plaintiff.” Order, Nov. 29, 2017, at 16, ECF
No. 25.
Despite more than forty hours of researching and drafting her initial brief - five of which
were dedicated to reviewing the administrative record - Plaintiff’s counsel was unable to
comprehend that Dr. McAndrews had not treated Plaintiff.

In fact, Plaintiff’s counsel

unequivocally claimed that Dr. McAndrews “[was] a treating source,” and argued that she was
“entitled to the greatest weight, if not controlling weight, of the opinions in this case.” Pl.’s Mot.
Remand and Supp. Brief 15, ECF No. 20. These were overt misstatements at worst, and critical
oversights at best. Assuming the best, the Court cannot reasonably award such an extraordinary
fee for brief writing when the hours claimed do not, at the very least, evince a cognizance of
critical facts.

Here, that awareness was lacking and the Court would be remiss in its

responsibility to the taxpayers if it granted the fees requested. Instead, the Court will strike the
entries of May 15, 2017, and May 16, 2017, which request compensation for 3.0 and 2.0 hours
for “reply brief research and writing.” See Pl.’s Mot. 3. These entries are duplicative both with
each other and with numerous other entries in counsel’s Declaration, and clearly did not assist
counsel in marshaling command of the facts in her case. Therefore, the Court will reduce
counsel’s fee request an additional 5.0 hours.
C.

Costs

Counsel also requests reimbursement for costs in the amount of $413.61, representing
$400.00 for this case’s filing fee and $13.61 for postage related to service. While filing fees are

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recoverable, the Tenth Circuit has expressly held that postage fees are not. Weakley v. Bowen,
803 F.2d 575, 580 (10th Cir. 1986) (“Costs for travel expenses and postage fees are not
authorized [under EAJA].”). Therefore, the Court will order that counsel be awarded $400.00 in
costs pursuant to 28 U.S.C. § 1920 (2012).
III.

CONCLUSION
Having reviewed the parties’ briefing and applicable case law, the Court finds that

Plaintiff’s Motion [ECF No. 27] should be GRANTED IN PART AND DENIED IN PART
and therefore orders that EAJA fees be awarded for a total of 47.5 hours. Of these, 44 hours
shall be payable at the 2017-18 rate of $197 per hour, and 3 shall be payable at the 2016 rate of
$192 per hour. The Court further orders that Plaintiff be awarded $400.00 for costs.
IT IS THEREFORE ORDERED that Plaintiff Lorynn Serna is authorized to receive
$9,644.00 ($9,244.00 in attorney fees and $400.00 in filing fees) 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).

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IT IS SO ORDERED.

________________________________________
THE HONORABLE GREGORY J. FOURATT
UNITED STATES MAGISTRATE JUDGE

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