Apachito v. Social Security Administration
Filing
43
MEMORANDUM OPINION AND ORDER by District Judge Judith C. Herrera granting in part and denying in part 41 Plaintiff's Motion for Attorney Fees (baw) (baw)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
CORNITA M. APACHITO,
Plaintiff,
v.
No. 17-cv-0504 JCH-SMV
NANCY A. BERRYHILL,1
Acting Commissioner of Social Security Administration,
Defendant.
MEMORANDUM OPINION AND ORDER
GRANTING IN PART AND DENYING IN PART PLAINTIFF’S
MOTION FOR ATTORNEY’S FEES UNDER THE EQUAL JUSTICE ACT
THIS MATTER is before the Court on Plaintiff’s Motion for Attorney’s Fees Under the
Equal Access to Justice Act and for Entry of Final Judgment, filed on August 16, 2018. [Doc. 41].
Defendant responded on August 28, 2018, contesting Plaintiff’s counsel’s fees as excessive.
[Doc. 42]. Plaintiff has filed no reply, and the time for doing so has passed. Having reviewed the
record, the briefing, and the relevant law, the Court GRANTS IN PART and DENIES IN PART
Plaintiff’s Motion for Attorney’s Fees. Plaintiff will be awarded $4,775.49.
I.
BACKGROUND
Plaintiff applied for supplemental security income on November 8, 2012, but the Social
Security Administration denied her application. Tr. at 15. Plaintiff requested a hearing before an
Administrative Law Judge (“ALJ”). Id. An ALJ heard Plaintiff’s case and issued an unfavorable
1
Nancy A. Berryhill is now the Acting Commissioner of Social Security. Pursuant to Rule 25(d) of the Federal Rules
of Civil Procedure, Nancy A. Berryhill should be substituted for Acting Commissioner Carolyn W. Colvin as the
defendant in this suit. No further action needs to be taken to continue this suit by reason of the last sentence of § 205(g)
of the Social Security Act, 42 U.S.C. § 405(g).
decision on September 15, 2015. Id. at 27. Plaintiff field a Complaint in this Court contesting the
ALJ’s decision on April 28, 2017. [Doc. 1]. Judge Vidmar issued a Proposed Finding and
Recommended Disposition recommending that this Court reverse the Commissioner’s final
decision and remand the case for further proceedings. [Doc. 38] at 11. The Court adopted Judge
Vidmar’s recommendations on August 14, 2018. [Doc. 39]. Plaintiff now moves for attorney’s
fees under the Equal Access to Justice Act (“EAJA”). [Doc. 41].
II.
LEGAL STANDARD
The prevailing party in a social security appeal is entitled to an award of fees and expenses
when the position of the United States was not substantially justified and no special circumstances
make the award unjust. 28 U.S.C. § 2412(d)(1)(A) (2016); Hackett v. Barnhart, 475 F.3d 1166,
1172 (10th Cir. 2007). A court may only award reasonable fees. Hensley v. Eckerhart, 461 U.S.
424, 433, 437 (1983) (interpreting attorney’s fee requests under 42 U.S.C. § 1988); see Comm’r,
INS v. Jean, 496 U.S. 154, 160–61 (1990). The fee applicant bears the burden to prove that she
incurred reasonable fees and charged a reasonable rate. Hensley, 461 U.S. at 437. If the fee
applicant’s records are sloppy or imprecise, the district court does not abuse its discretion in
reducing fee requests. Jane L. v. Bangerter, 61 F.3d 1505, 1510 (10th Cir. 1995); Robinson v. City
of Edmond, 160 F.3d 1275, 1281 (10th Cir. 1998).
III.
ANALYSIS
Defendant disputes Plaintiff’s counsel Mr. Diamond’s request for fees as excessive.2
[Doc. 42] at 3–6. The Court agrees, for two reasons. First, Mr. Diamond routinely overbilled for
simple tasks. Defendant disputes six time entries on this ground:
2
Defendant does not argue that her position was substantially justified.
2
1) 6/21/18, USDC – substitution of party (0.25 hours) [Doc. 35]: The Court assumes this
charge is for reviewing Ms. Holland’s Notice of Substitution of Counsel [Doc. 35], filed
on May 30, 2018. Reviewing this one-page Order should not have reasonably taken more
than five minutes. The Court will reduce the amount of time to 0.1 hours.
2) 4/16/18, Order granting stipulated motion for extension of time for briefing & call to
opposing counsel (1.25 hours) [Doc. 32]: According to Mr. Diamond’s timesheet, this entry
refers to [Doc. 32], Order Granting Stipulated Motion for Extension of Time to File Motion
to Reverse or Remand and Brief in Support Thereof. The Stipulate Motion, [Doc. 31], is
a standard, two-paragraph motion requesting an extension of seven days to file Plaintiff’s
Motion to Reverse or Remand. The Order, [Doc 32], is a standard, two-paragraph order
granting the Motion. Drafting the Motion and Order could not have possibly taken 1.25
hours, including the call necessary to obtain defense counsel’s approval. The Court can
only assume that this entry is a typographical error and was intended to reflect 0.25 hours
rather than 1.25 hours. Regardless, the Court will reduce this entry to 0.1 hours. See Burr
v. Bowen, 782 F. Supp. 1285, 1290 (N.D. Ill. 1992) (disallowing fees for motions for
extensions of time for plaintiff’s attorney’s convenience).
3) 4/16/18, Stipulated motion for extension of time for briefing (1 hour) [Doc. 31]: Drafting
and reviewing this one-page Motion should not have reasonably taken more than ten
minutes. For the reasons stated above, the Court will reduce the amount of time for this
task to 0.1 hours.
4) 4/10/18, Order granting stipulated motion for extension of time (1 hour) [Doc. 30]: For the
reasons stated above, the Court will reduce the amount of time for this task to 0.1 hours.
3
5) 4/12/18, Stipulated motion for extension of time (0.75 hours) [Doc. 29]: Again, for the
reasons stated above, the Court will reduce the amount of time for this task to 0.1 hours.
6) 2/19/18, Review order (0.75 hours) [Doc. 28]: This entry is for time spent reviewing the
Court’s Order Setting Briefing Schedule. Reviewing this one-page Order and calculating
the deadlines should reasonably have taken no longer than five minutes. The Court will
reduce the amount of time to 0.1 hours.
Second, Mr. Diamond’s fee request is excessive because he billed for non-compensable
clerical activities. Defendant disputes two entries on this ground:
1) 4/28/17, Complaint, summons, transmittals, and civil cover sheet (1.5 hours) [Doc. 1]: A
court cannot compensate Plaintiff for clerical work done by her attorney. Missouri v.
Jenkins, 491 U.S. 274, 288 n.10 (1989); Bowers v. Astrue, No. 07-cv-00454-WYD, 2008
WL 2568801, at *3 (D. Colo. June 24, 2008). Creating summonses and cover sheets are
clerical activities. Lann v. Colvin, Case No. CIV-14-827-R, 2015 WL 8262223, at *1
(W.D. Okla. Nov. 10, 2015). Drafting a complaint, however, is not purely clerical work;
whether it is in-part clerical depends on its length, complexity, and boilerplate language.
See Brandt v. Astrue, No. 08-0658-TC, 2009 WL 1727472, at *4 (D. Or. June 16, 2009).
Reviewing Plaintiff’s Complaint, the Court concludes that drafting it was largely a clerical
duty: it is mostly boilerplate (containing few references to Plaintiff or her disability) and
only three pages long. Plaintiff offers no argument to the contrary. The Court will reduce
the amount of hours claimed here to 1.0 hour.
2) 5/1/17, Preparing affidavit IFP (1.25 hours): Preparing an IFP affidavit is a clerical activity.
Villalobos v. Colvin, No. CV-15-00463-CG, 2016 WL 10179289, at *2–3 (D.N.M. July
4
12, 2016) (reducing fees for preparation of an IFP affidavit because its preparation is a
clerical activity and the fee applicant does not dispute it in his reply); Montoya v. Colvin,
No. 14-cv-0836 LH/SMV, 2015 WL 13651170, at *2 (D.N.M. Dec. 16, 2015) (finding that
preparation of an IFP affidavit is clerical). Plaintiff does not argue otherwise. The Court
therefore strikes it from Mr. Diamond’s fee request.
For the foregoing reasons, the Court reduces the contested items from 7.75 hours to
1.6 hours, bringing the total down to 23.85 hours. Multiplying 23.85 by $200.23,3 the Court will
award Plaintiff $4,775.49.
IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED that Plaintiff’s
Motion for Attorney’s Fees [Doc. 41] be GRANTED IN PART and DENIED IN PART.
Plaintiff Cornita Apachito is awarded $4,775.49 under the Equal Access to Justice Act for payment
to her attorney for services before the Court.
IT IS FURTHER ORDERED that if Plaintiff’s counsel is ultimately granted attorney
fees pursuant to 42 U.S.C. § 406(b), counsel shall refund the smaller award to Plaintiff pursuant
to Gisbrecht v. Barnhart, 535 U.S. 789, 796 (2002) (stating that the government may pay fees
under both EAJA and § 406(b), but if that occurs then the government must refund to the claimant
the amount of the smaller fee).
IT IS SO ORDERED.
______________________________
JUDITH C. HERRERA
United States District Judge
3
Mr. Diamond asks for an hourly rate of $200.23. See [Doc. 41] at ¶ 7 ($6,007/30 = $200.23). Defendant does not
challenge the hourly rate, see [Doc. 42] at 6, and the Court finds it to be reasonable.
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