Parrish v. Commissioner Social Security Administration

Filing 31

ORDER: The Court GRANTS in part and DENIES inpart Plaintiff's Motion (# 27 ) for Fees, Costs, and Expenses Pursuant to EAJA. Pursuant to EAJA the Court AWARDS to Plaintiff attorneys' fees in the amount of $11,296.19 and costs andexpenses in the amount of $20.00. See order for further details. Signed on 3/20/18 by Judge Anna J. Brown. (jy)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

TERRY LEE PARRISH, Legal
Representative for the Estate
of Dana Michael Parrish,

1:16-cv-02246-BR
ORDER

Plaintiff,
v.
COMMISSIONER, SOCIAL
SECURITY ADMINISTRATION,1
Defendant.

NANCY J. MESEROW
7540 S.W. 51st Avenue
Portland, OR 97219
[phone]
Attorney for Plaintiff

1

Nancy A. Berryhill’s term as the Acting Commissioner of
the Social Security Administration ended on November 17, 2017,
and a new Commissioner has not been appointed.
1 - ORDER

BILLY J. WILLIAMS
United States Attorney
RENATA GOWIE
Assistant United States Attorney
1000 S.W. Third Avenue, Suite 600
Portland, OR 97204-2902
[phone]
MICHAEL W. PILE
Acting Regional Chief Counsel
MICHAEL S. HOWARD
Special Assistant United States Attorney
Social Security Administration
701 5th Avenue, Suite 2900, M/S 221A
Seattle, WA 98104
[phone]
Attorneys for Defendant

BROWN, Senior Judge.
This matter comes before the Court on Plaintiff Terry Lee
Parrish’s Motion (#27) for Fees, Costs and Expenses Pursuant to
Equal Access to Justice Act (EAJA).

In his Motion Plaintiff

seeks $13,996.89 in attorneys’ fees and $20.00 in costs and
expenses.

Defendant opposes Plaintiff’s Motion on the basis that

the amount of attorneys’ fees sought is unreasonable.

Defendant

does not oppose Plaintiff’s request for $20.00 in costs and
expenses.
On this record the Court AWARDS attorneys’ fees to Plaintiff
in the amount of $11,296.19 and costs and expenses in the amount
of $20.00.

2 - ORDER

STANDARDS
Under EAJA the Court may award attorneys’ fees and costs to
a plaintiff’s attorney in an action against the United States or
any agency or official of the United States if
(1) the plaintiff is the prevailing party, (2) the
government has not met its burden to show that its
positions were substantially justified or that special
circumstances make an award unjust, and (3) the
requested attorney's fees and costs are reasonable.
28 U.S.C. § 2412(d)(1)(A).

See also Perez-Arellano v. Smith, 279

F.3d 791, 792 (9th Cir. 2002).
A “prevailing party” is one who has been awarded relief by
the court on the merits of at least some of his claims.
v. Hampton, 446 U.S. 754, 758 (1980).

Hanrahan

“Enforceable judgments and

court-ordered consent decrees create ‘the material alteration of
the legal relationship of the parties’ necessary to permit an
award of attorney’s fees.”

Buckhannon Bd. and Care Home, Inc. v.

W. Va. Dep't of Health and Human Res., 532 U.S. 598, 604
(2001)(internal citation omitted).
A prevailing plaintiff is not entitled to attorneys’ fees
under EAJA when the Commissioner's positions were substantially
justified.
2002).

Lewis v. Barnhart, 281 F.3d 1081, 1083 (9th Cir.

The Commissioner’s positions are substantially justified

if they are reasonably based in both law and fact.
Pierce v. Underwood, 487 U.S. 552, 566 n.2 (1988)).

Id. (citing
The

Commissioner’s failure to prevail on the merits of his positions
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does not raise a presumption of unreasonableness.

U.S. v.

Marolf, 277 F.3d 1156, 1162 (9th Cir. 2002)(citing Kali v. Bowen,
854 F.2d 329, 332 (9th Cir. 1988)).
Under EAJA the hourly rate for attorneys’ fees is capped at
$125.00, but the statute allows the Court to make adjustments for
cost of living or other appropriate “special factor[s].”
U.S.C. § 2412(d)(2)(A).

28

If the government acts in bad faith,

however, fees may be awarded at the market rate rather than at
the EAJA-mandated rate.

28 U.S.C. § 2412(b), (c).

See also

Brown v. Sullivan, 916 F.2d 492, 497 (9th Cir. 1990)(“The
district court may award attorney fees at market rates for the
entire course of litigation . . . if it finds that the fees
incurred during the various phases of litigation are in some way
traceable to the Secretary’s bad faith.”).

The “bad faith

exception is ‘a narrow one,’ typically invoked in cases of
'vexatious, wanton, or oppressive conduct.’”

Id. at 495 (quoting

Barry v. Bowen, 825 F.2d 1324, 1334 (9th Cir. 1987) and citing
F.D. Rich Co. v. United States ex rel. Indus. Lumber Co., 417
U.S. 116 (1979)).

The bad-faith exception “is punitive, and the

penalty can be imposed ‘only in exceptional cases and for
dominating reasons of justice.’”

Beaudry Motor Co. v. Abko Prop.

Inc., 780 F.2d 751, 756 (9th Cir. 1986)(quoting United States v.
Standard Oil Co., 603 F.2d 100, 103 (9th Cir. 1979)).
The court may reduce an award of attorneys’ fees under EAJA
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when the plaintiff’s requested fees are unreasonable.

Costa v.

Comm’r of Soc. Sec. Admin., No. 11-35245, 2012 WL 3631255, at *2
(9th Cir. Aug. 24, 2012)(citing 28 U.S.C. §§ 2412(d)(1)(A),
2412(d)(2)(A)).

The court applies the “lodestar” method set

forth in Hensley v. Eckerhart to determine whether a fee award is
reasonable.

Id. (citing 461 U.S. 424, 433 (1983)).

See also

Comm’r, INS v. Jean, 496 U.S. 154, 161 (1990)(Under EAJA “the
district court’s task of determining what fee is reasonable is
essentially the same as that described in Hensley.”).
To calculate the “lodestar” amount, the court multiplies
“the number of hours reasonably expended on the litigation . . .
by a reasonable hourly rate.”

Costa, 2012 WL 3631255, at *2

(quoting Hensley, 461 U.S. at 433).

To calculate the number of

hours reasonably expended, the court considers “whether, in light
of the circumstances, the time could reasonably have been billed
to a private client.”

Hensley, 461 U.S. at 433.

A court may not apply de facto caps on the number of hours
for which an attorney can be compensated under EAJA.
WL 3631255, at *1.
basis.

Id.

Costa, 2012

Cases must be considered on an individual

In order to reduce the number of hours requested for

a particular task, a court must explain why the amount of time
requested is too high and provide specific reasons for making
significant reductions.
1112).
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Id., at *4 (citing Moreno, F.3d at

DISCUSSION
Plaintiff seeks $13,996.89 in attorneys’ fees to compensate
Plaintiff’s counsel for 82.8 hours of work billed on this matter.
Plaintiff’s counsel notes she voluntarily discounted 11.3 hours
traceable to her review of the record and preparation of
Plaintiff’s Opening Brief from her request for attorneys’ fees.
Defendant contends Plaintiff’s request is unreasonable
notwithstanding the voluntary discount.
The hours billed by Plaintiff’s counsel break down broadly
into five categories:

(1) 6.4 hours on case-management matters

that included reviewing the case to determine whether to accept
the representation, preparing and filing a motion for
substitution of party, and communicating with Plaintiff;
(2) 34.6 hours reviewing the administrative record; (3) 37.6
hours drafting Plaintiff’s Opening Brief and conducting legal
research; (4) 6.1 hours reviewing Defendant’s Response Brief and
settlement offer and preparing Plaintiff’s Reply Brief; and
(5) 1.2 hours reviewing this Court’s Opinion and Order,
communicating with Plaintiff about this Court’s Opinion and
Order, and preparing the Motion for Fees, Costs, and Expenses.2

2

Although Plaintiff’s Motion indicates she billed a total
of 82.8 hours on this matter, the billing records attached to the
Declaration of Nancy A. Meserow (#28) indicate Plaintiff’s
counsel billed 85.9 total hours on this litigation. The Court,
therefore, uses this number in its lodestar analysis.
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I.

Case-Management Matters
The Court finds the 6.4 hours spent on case-management

matters are reasonable.

Of these hours, Plaintiff’s counsel

spent 3.1 hours in 2016 (which the parties agree are
appropriately reimbursed at a rate of $192.68 per hour) and
3.3 hours in 2017 (which the parties agree are appropriately
reimbursed at $195.95 per hour).
Accordingly, the Court awards attorneys’ fees to Plaintiff
in the amount of $1,243.95 ($597.31 for 3.1 hours x $192.68 per
hour + $646.64 for 3.3 hours x $195.95 per hour) for casemanagement matters.
II.

Record Review
The Court finds the 34.6 hours spent reviewing the record to

be excessive.

The administrative record in this case was

approximately 900 pages.

Although the administrative record in

this case is longer than the typical administrative record, it is
not extraordinarily longer.

Moreover, the Court finds after

reviewing the record that there is nothing in the nature of the
record aside from its length that would make it more burdensome
or time-consuming to review than the typical administrative
record.

Thus, the Court concludes a reasonable attorney should

have been able to review such a record in 24 hours.
The Court, therefore, concludes an award of attorneys’ fees
for 24.0 hours of record review is reasonable.
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All of the hours

that Plaintiff’s counsel spent reviewing the record were in 2017.
Accordingly, the Court awards attorneys’ fees of $4,702.80
(24.0 hours x $195.95 per hour) to Plaintiff for the time spent
reviewing the administrative record.
III. Preparation of Plaintiff’s Opening Brief
The Court finds the 37.6 hours spent drafting Plaintiff’s
Opening Brief are excessive.

Plaintiff submitted an Opening

Brief (#17) that was approximately 35 pages in length (excluding
the table of contents and table of authorities) and raised seven
assignments of error.

Although the arguments Plaintiff presented

in his Opening Brief were well-presented, six of the seven issues
are common to Social Security cases and are not unusually
complex.

Plaintiff raised one unusual issue when he contended

the Administrative Law Judge erred by failing to send a showcause order to Claimant’s administrative counsel after Claimant
failed to appear at an administrative hearing.

Although the

Court would expect this unusual issue to cause Plaintiff’s
counsel to spend some additional time in legal research, the
Court finds after reviewing the matter that those legal issues
were relatively straightforward.
The Court notes the 37.6 hours spent drafting Plaintiff’s
Opening Brief (excluding those hours reviewing the administrative
record) are unusually high.

Although a reasonable attorney might

spend a somewhat above-average amount of time preparing an

8 - ORDER

opening brief like the one that Plaintiff’s counsel prepared, the
Court finds 37.6 hours is excessive and that preparation of the
opening brief should have taken no more than 20.0 hours.

The

Court, therefore, awards attorneys’ fees to Plaintiff for 20.0
hours to prepare Plaintiff’s Opening Brief.

All of the hours

that Plaintiff’s counsel spent preparing Plaintiff’s Opening
Brief were in 2017.
Accordingly, the Court awards to Plaintiff $3,919.00 (20.0
hours x $195.95 per hour) in attorneys’ fees for the time spent
preparing Plaintiff’s Opening Brief.
IV.

Preparation of Plaintiff’s Reply Brief
The Court finds reasonable the 6.1 hours that Plaintiff’s

counsel spent reviewing Defendant’s Response Brief and settlement
offer and preparing Plaintiff’s Reply Brief.

All of the hours

that Plaintiff’s counsel spent on these matters were in 2017.
Accordingly, the Court awards to Plaintiff $1,195.30 (6.1
hours x $195.95 per hour) in attorneys’ fees for time spent
preparing Plaintiff’s Reply Brief.
V.

Opinion and Order Review and Motion for Fees, Costs, and
Expenses
The Court finds reasonable the 1.2 hours that Plaintiff’s

counsel spent reviewing this Court’s Opinion and Order;
communicating with Plaintiff about this Court’s Opinion and
Order; and preparing Plaintiff's Motion for Fees, Costs, and
Expenses.
9 - ORDER

All of the hours that Plaintiff’s counsel spent on

these matters were in 2017.
Accordingly, the Court awards to Plaintiff $235.14 (1.2
hours x $195.95 per hour) in attorneys’ fees for the review of
this Court’s Opinion and Order and preparation of the Motion for
Fees, Costs, and Expenses.
The Court also finds Plaintiff’s undisputed request for
$20.00 in costs and expenses.

Accordingly, the Court awards to

Plaintiff $20.00 in costs and expenses.
In summary, the Court awards to Plaintiff $11,296.19 in
attorneys’ fees ($1,243.95 + $4,702.80 + $3,919.00 + $1,195.30 +
$235.14) and $20.00 in costs and expenses.

CONCLUSION
For these reasons, the Court GRANTS in part and DENIES in
part Plaintiff’s Motion (#27) for Fees, Costs, and Expenses
Pursuant to EAJA.

Pursuant to EAJA the Court AWARDS to Plaintiff

attorneys’ fees in the amount of $11,296.19 and costs and
expenses in the amount of $20.00.
EAJA fees, expenses, and costs are subject to any offsets
allowed under the Treasury Offset Program.
560 U.S. 586, 593–94 (2010).

Astrue v. Ratliff,

Plaintiff has filed with the Court

an assignment of EAJA fees to counsel.

If Plaintiff does not

have any debt subject to the Treasury Offset Program, the Court
directs Defendant to make the check payable to Plaintiff’s
10 - ORDER

attorney, Nancy J. Meserow, and to mail the check to Plaintiff’s
attorney.
IT IS SO ORDERED.
DATED this 20th day of March, 2018.

/s/ Anna J. Brown
ANNA J. BROWN
United States Senior District Judge

11 - ORDER