Irwin v. Commissioner, Social Security Administration
Filing
48
OPINION & ORDER: Plaintiff's Second Request 44 is GRANTED in part and DENIED in part pursuant to EAJA. Plaintiff is awarded attorneys' fees and costs in the amount of $2,051.95 ($2,627.58 - $575.63). See 8-page opinion & order attached. Ordered by Judge Marco A. Hernandez. (mr)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION
BRENDA M. IRWIN,
No. 3:10-CV-545-HZ
Plaintiff,
OPINION & ORDER
v.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.
Bruce W. Brewer
LAW OFFICES OF BRUCE W. BREWER, PC
419 Fifth Street
Oregon City, OR 97045
Attorney for Plaintiff
Adrian L. Brown
U.S. ATTORNEY‟S OFFICE, DISTRICT OF OREGON
1000 S.W. Third Ave., Suite 600
Portland, OR 97204
David J. Burdett
SOCIAL SECURITY ADMINISTRATION
1 - OPINION & ORDER
701 Fifth Avenue, Suite 2900 M/S 901
Seattle, WA 98104-7075
Attorneys for Defendant
HERNANDEZ, District Judge:
Now before me is Plaintiff‟s Application for Supplemental Fees Pursuant to the Equal
Access to Justice Act (“Second Request”) (doc. #44), filed by Brenda M. Irwin (“Plaintiff”).
Plaintiff seeks an award of fees and costs in the amount of $2,627.58 for 14.55 hours expended
on defending Plaintiff‟s Application for Fees Pursuant to the Equal Access to Justice Act (“First
Request”) (doc. #31). For the reasons that follow, Plaintiff‟s Second Request is GRANTED in
part and DENIED in part.
BACKGROUND
On July 1, 2011, I issued an Opinion and Order (doc. #29) reversing the decision of the
Commissioner of Social Security (the “Commissioner”) and remanding the underlying social
security matter for the immediate calculation and award of benefits pursuant to sentence four of
42 U.S.C. § 405(g). As the prevailing party, Plaintiff filed the First Request on September 20,
2011, seeking an award of fees and costs in the amount of $18,609.91 for 103.90 hours spent on
arguing the underlying case. Pursuant to the Equal Access to Justice Act (“EAJA”), 28 U.S.C. §
2412 et. seq., I granted in part and denied in part Plaintiff‟s First Request on November 22, 2011,
reducing the disputed billable hours by 25%, an equivalent of 11.125 hours or $1,997.05. On
January 1, 2012, Plaintiff subsequently filed her Second Request seeking an additional $2,627.58
for 14.55 of hours expended on defending her First Request.
STANDARD
“For the court to award attorney‟s fees and costs pursuant to the EAJA, it must be shown
that (1) the plaintiff is the prevailing party; (2) the government has not met its burden of showing
2 - OPINION & ORDER
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.” Perez-Arellano v. Smith, 279
F.3d 791, 793 (9th Cir. 2002) (citing 28 U.S.C. § 2412(d)(1)(A)). “[T]he fee applicant bears the
burden of establishing entitlement to an award and documenting the appropriate hours
expended.” Hensley v. Eckerhart, 461 U.S. 424, 437 (1983). The government has the burden of
proving that its positions were substantially justified. Hardisty v. Astrue, 592 F.3d 1072, 1076
n.2 (9th Cir. 2010) (citing Flores v. Shalala, 49 F.3d 562, 569-70 (9th Cir. 1995)). The Court has
an independent duty to review the submitted itemized log of hours to determine the
reasonableness of hours requested in each case. See Sorenson v. Mink, 239 F.3d 1140, 1145 (9th
Cir. 2001) (“The most useful starting point for determining the amount of a reasonable fee is the
number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate.”).
(Citing Hensley, 461 U.S. at 433). “[E]xcessive, redundant, or otherwise unnecessary” hours
should be excluded from a fee award, and charges that are not properly billable to a client are not
properly billable to the government. Hensley, 461 U.S. at 434. “[D]eference is to be given to a
district court‟s determination of a reasonable attorney‟s fee.” Cunningham v. Cnty. of L.A., 879
F.2d 481, 484 (9th Cir. 1988).
DISCUSSION
Attorneys‟ fees for time incurred defending a petition for fees are recoverable under
EAJA. Comm‟r, Immigration and Naturalization Serv. v. Jean, 496 U.S. 154, 157 (1990). The
Commissioner does not dispute that fees for time incurred defending Plaintiff‟s First Request is
recoverable under EAJA, and as in the First Request, does not argue whether or not his position
was substantially justified. Rather, the Commissioner simply argues that the attorneys‟ fees and
3 - OPINION & ORDER
costs associated with Plaintiff‟s Second Request is unreasonable and should therefore be
reduced.
I. Fees Associated with Defending Improper Block-Billing Hours
The Commissioner urges this court to follow the Sixth Circuit‟s decision in Coulter v.
Tennessee, 805 F.2d 146, 151 (6th Cir. 1986), which expressly limited “the hours allowed for
preparing and litigating [an] attorney fee case” to no more than “3% of the hours in the main
case.” In the alternative, the Commissioner urges this court to reduce Plaintiff‟s supplemental
request by at least 25%. The Commissioner asserts that 25% is the proper proportion by which
to reduce Plaintiff‟s requested fees because this court previously ordered that Plaintiff‟s disputed
billable hours in the First Request be reduced by 25%. I disagree with the Commissioner‟s
position.
The Commissioner makes no argument as to why, and cites not authority standing for the
proposition that, this court should adopt the Sixth Circuit‟s 3% cap. I am uncompelled by the
Commissioner‟s bare request asking this court to adopt the Sixth Circuit‟s 3% ceiling and decline
to apply such a ceiling in this instance.
I also decline to reduce Plaintiff‟s total fee request by 25%. As detailed in my November
22, 2011, order, I only reduced the hours associated with the block-billed portion of Plaintiff‟s
fee request by 25%–I did not reduce Plaintiff‟s total requested hours by 25%. A 25% reduction
of the total hours requested by Plaintiff in this instance would simply be inconsistent with the
results of Plaintiff‟s First Request. See Atkins v. Apfel, 154 F.3d 986, 989 (9th Cir. 1998) (“The
district court should „make clear that it has considered the relationship between the amount of the
fee awarded and the results obtained.‟”) (Citing Hensley, 461 U.S. at 437).
4 - OPINION & ORDER
Plaintiff contends that only the time her attorney spent arguing the block-billing issue
should be reduced by 25%. In his declaration, Ralph Wilborn (“Wilborn”) concedes he “billed
4.75 hours on the block-billing issue.” Wilborn Decl., p. 2 (doc. #47). Plaintiff argues that in
light of Wilborn‟s statements, a 25% reduction of 4.75 hours, or 1.1875 hours (an equivalence of
$214.45) would more properly reflect the results obtained in her First Request than the
Commissioner‟s proposed solution. Plaintiff‟s argument is well-taken.
As noted in my November 22, 2011, order, Plaintiff improperly sought 44.5 hours of
block-billed time. Taking into consideration, among other things, the reasonableness of the
requested fees and the outcome of the underlying social security case, I found it reasonable to
reduce Plaintiff‟s First Request by 11.125 hours (25% x 44.5), or 25% of the disputed blockbilled time. In this particular instance, Plaintiff‟s proposed reduction of 1.1875 hours properly
accounts for the relationship between the fee to be awarded and the results obtained in Plaintiff‟s
First Request. Plaintiff‟s requested hours are therefore reduced by 1.1875 hours, or $214.45
(1.1875 x $180.59).
II. Research Performed by Wilborn
The Commissioner also urges this court to reduce Plaintiff‟s requested hours by 3.0
hours–the time expended by Wilborn on October 24, 2011, to conduct “research necessary to
draft [the] Declaration of Ralph Wilborn, and draft [the] same.” Resp., p. 3; Wilborn Decl., p. 2
(doc. #47). The Commissioner argues Plaintiff‟s requested time for “research” is simply a “a cut
and paste of a table that counsel included six years ago” in another EAJA case, “Abrego v. SSA,
Civ. No. 04-1000-MO (D. Or.),” and therefore should be disallowed. Resp., p. 4.
Plaintiff reads the Commissioner‟s argument as objecting only to the research necessary
to locate and cut and paste the table into the Wilborn Declaration and not an objection to the time
5 - OPINION & ORDER
necessary to draft the declaration or perform other research, including legal research. Plaintiff
asserts the term “research” includes research of “issues addressed in Chryel D. Burt v. Michael J.
Astrue, Civil Action No. 08-1427 (E.D. Pa. April 6, 2011) and Walton v. Massanari, 177 F.
Supp. 2d 359 (E.D. Pa. 2001),” and therefore her requested hours are reasonable. Reply, p. 6. I
disagree.
Wilborn makes clear that he maintains a high level of “competence and expertise as a
Social Security disability law practitioner.” Wilborn Decl., p. 3 (doc. #34). He proffers
evidence demonstrating he is a member of a number of organizations, including “the Oregon
State Bar, . . . all Oregon state courts[,] . . . the U.S. District Court for the District of Oregon, the
U.S. Court of Appeals for the Ninth Circuit, and the Supreme Court of the United States.” Id. In
support of his competence and expertise as a social security law practitioner, he also highlights
his previous experience as an “administrative law judge for the Social Security Administration[,]
that his practice only involves “representing Social Security claimants in federal court
proceedings[,]” and that he has authored a social security handbook. Id. (doc. #34). Wilborn
further points out that he has participated in no less than sixteen “precedential Social Security
cases in the U.S. Court of Appeals for the Ninth Circuit.” Id., p. 4 (doc. #34). Furthermore,
insofar as it relates to Plaintiff‟s EAJA fee requests, Wilborn has consistently charged the
maximum statutory caps for his hourly fees, presumably based upon his competence and
expertise in social security law. Pl.‟s Mem. in Supp. of First Request, p. 5; Pl.‟s Mem. in Supp.
of Second Request, p. 2.
I do not question Wilborn‟s expertise or his hourly rates, which I find reasonable. I,
however, find it perplexing that with all the competence and expertise Wilborn brings to the
table, it still took him almost 3.0 hours to research and draft the Wilborn Declaration. Wilborn
6 - OPINION & ORDER
Decl., p. 2 (doc. #47). The Wilborn Declaration is straightforward and simple, indicating that it
did not take Wilborn very long to draft the declaration. Instead, it appears that the bulk of
Wilborn‟s time was spent on conducting the research associated with the declaration. Plaintiff
makes no argument to the contrary.
It is axiomatic that an inverse relationship should exist between the competence and
experience an attorney has and the time it takes for the attorney to complete certain tasks,
including researching and drafting a declaration. I expect such an inverse relationship to be even
more pronounced considering Wilborn‟s background. Here, Plaintiff offers no compelling
justification supporting the time required by Wilborn to research and draft the declaration at
issue here. In fact, Plaintiff‟s explanation supporting Wilborn‟s research is unclear, and at best,
vague. Suffice it to say, the cases stemming from Wilborn‟s research, namely Burt v. Astrue,
Civil Action No. 08-1427, 2011 WL 1325607 (E.D. Pa. 2011) and Walton v. Massanari, 177 F.
Supp. 2d 359 (E.D. Pa. 2001), involve neither novel or complex legal issues nor complicated fact
patterns. The Wilborn Declaration itself does not involve novel or complex legal issues or
otherwise indicate any reason supporting almost 3.0 hours of combined research and drafting.
Furthermore, as noted above, 44.5 billable hours documented in the Wilborn Declaration were
improperly block-billed and resulted in a reduction of 11.125 hours or almost $2,000. Under
these circumstances, I cannot conclude that the requested hours related to drafting and
researching the Wilborn Declaration is reasonable. Based on the record before me, I conclude
that one hour for researching and drafting the Wilborn Declaration is reasonable. Accordingly,
Plaintiff‟s requested fee amount as it relates to the Wilborn Declaration is reduced by two hours.
7 - OPINION & ORDER
In sum, Plaintiff‟s total fee request is reduced by 3.1875 hours (1.1875 + 2.0), or $575.63
($180.59 x 3.1875). With respect to the remaining requested fees, I conclude they are
reasonable.
CONCLUSION
For the foregoing reasons, Plaintiff‟s Second Request (doc. #44) is GRANTED in part
and DENIED in part pursuant to EAJA. Plaintiff is awarded attorneys‟ fees and costs in the
amount of $2,051.95 ($2,627.58 - $575.63).
IT IS SO ORDERED.
Dated this 5th day of March, 2012.
/s/ Marco A. Hernandez
MARCO A. HERNANDEZ
United States District Judge
8 - OPINION & ORDER
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?