Ruff v. Commissioner of the Social Security Administration
ORDER granting 22 and 27 Motions for Attorney Fees. Signed by US Magistrate Judge Veronica L. Duffy on 2/11/2019. (CG)
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SHERRY L. RUFF,
ORDER GRANTING PLAINTIFF’S
MOTIONS FOR ATTORNEY’S FEES
NANCY A. BERRYHILL, ACTING
COMMISSIONER OF SOCIAL
DOCKET NOS. 22 & 27
Following the court’s order remanding this case to the Social Security
agency for further consideration, plaintiff Sherry Ruff filed a motion and
supplemental motion for an award of attorney’s fees, expenses, and costs. See
Docket Nos. 22 & 27. The Commissioner objected in part to the request. See
Docket No. 25.
Under the EAJA, a prevailing party in a civil suit against the United
States or one of its agencies shall be awarded attorney’s fees and costs. See 28
U.S.C. § 2412(a) and (d)(1)(A). However, if the court finds that the
government’s position was substantially justified, the court may choose not to
make such an award. Id. at (d)(1)(A).
An application for fees and costs under the EAJA must be made “within
thirty days of final judgment in the action.” See 28 U.S.C. § 2412(d)(1)(B). By
local rule, litigants seeking attorney’s fees in this district must file a motion for
attorney’s fees within 28 calendar days after the entry of judgment, absent a
showing of good cause. See DSD L.R. 54.1C. Here, the court entered final
judgment in Ms. Ruff’s favor on January 18, 2019. See, Docket No. 19.
Ms. Ruff filed her motion for attorney’s fees on January 22, 2019. See Docket
No. 22. Thus, Ms. Ruff’s motion is timely.
In order to avoid an award of attorney’s fees under the EAJA, the
government’s position must have been “substantially justified” at both the
administrative level and at the district court level. Kelly v. Bowen, 862 F.2d
1333, 1337 (8th Cir. 1988). In determining whether the government’s position
was substantially justified, the court should examine whether that position had
a clearly reasonable basis in fact and in law, “both at the time of the
Secretary’s decision and the action for judicial review.” Id.; Goad v. Barnhart,
398 F.3d 1021, 1025 (8th Cir. 2005). The government’s position can be
factually and legally reasonable, “solid,” even though that position turned out
to be not necessarily correct. Kelly, 862 F.2d at 1337. A loss on the merits
does not give rise to a presumption that the Commissioner’s position was not
substantially justified. Goad, 398 F.3d at 1025. The Commissioner bears the
burden of proving that its position was substantially justified. Id.
Ms. Ruff requested an award of the following:
Attorney’s Fees ($192.00 hourly rate x 51.951 hours)
Sales Tax on Attorney’s Fees (6.5%)
TOTAL AWARD REQUESTED:
The Commissioner does not take issue with Ms. Ruff’s entitlement to an
award in general, nor with counsel’s hourly rate, nor with the sales tax,
expenses, or filing fee part of the request. Instead, the Commissioner seeks a
reduction of Ms. Ruff’s attorney’s fees to 35 hours, so that it falls within the
“customary” hours of 20 to 40 hours “routinely” spent on a “typical” social
security file. The Commissioner also raises one specific issue regarding the
The Commissioner argues that 1.15 hours reviewing the file and
discussing with Ms. Ruff the in forma pauperis motion, drafting the IFP
paperwork, complaint and coversheet are not compensable because work
performed at the administrative level is not compensable. This is true. But the
IFP paperwork and the complaint were not necessitated, required or allowable
at the administrative level. Those activities were directly related to pursuing
the administrative appeal to this court. As such, they are allowable expenses.
Counsel originally requested 50.2 hours. See Docket No. 22. However, she
requests an additional 1.75 hours for preparing her reply brief on the instant
motion. See Docket No. 27.
As to the Commissioner’s general objection, she argues the total number
of attorney hours expended is too much given the experience of Ms. Ruff’s
attorney, the routine nature of the issues raised, the fact that current counsel
filed a brief for Ms. Ruff to the Appeals Council below, and the amount of time
spent drafting the facts in the brief. The Commissioner requests this court to
reduce Ms. Ruff’s counsel’s hours to 35 hours only.
Ms. Ruff argues her counsel’s expertise should not be used as a sword—
or a shield—against her. Instead, the court should be guided by whether the
number of hours requested is reasonable. Ms. Ruff points out that she won a
remand order on a majority of issues raised, and favorable treatment of some
issues on which she did not win the remedy sought.
In Hensley v. Eckerhart, 461 U.S. 424 (1983), the Court explored the
legislative history of 42 U.S.C. § 1988 allowing awards of attorney’s fees for
prevailing plaintiffs in civil rights litigation. Courts should apply the lodestar
method: multiply the number of hours reasonably expended on the litigation
by a reasonable hourly rate. Id. at 433. In determining the lodestar, the Court
noted that Congress cited approvingly to the 12 factors outlined in Johnson v.
Georgia Hwy. Express, Inc., 488 F.2d 714 (5th Cir. 1974).2 Hensley, 461 U.S.
at 429-30. Courts applying the EAJA have applied the rationale from Hensley
and other civil rights attorney’s fees statutes. Costa v. Comm’r. Social Sec.
Admin., 690 F.3d 1132, 1135 (9th Cir. 2012).
In Blanchard v. Bergesen, 489 U.S. 87, 93 (1989), the United States Supreme
Court overruled that part of Johnson which held that a contingent fee
agreement imposes an automatic cap on attorney’s fee award.
The twelve Johnson factors are: (1) the time and labor required; (2) the
novelty and difficulty of the questions; (3) the skill requisite to perform the legal
service properly; (4) the preclusion of other employment by the attorney in
order to accept the case; (5) the customary fee; (6) whether the fee is hourly or
contingent; (7) time limitations imposed by the client or the circumstances; (8)
the amount involved and the results obtained; (9) the experience, reputation
and ability of the attorney; (10) the “undesirability” of the case; (11) the nature
and length of the professional relationship with the client; and (12) awards in
similar cases. Johnson, 488 F.2d at 718-19.
In Costa, the Ninth Circuit stated it is unlikely a lawyer will spend
unnecessary hours on a contingent fee case in order to inflate her fee award in
a case like a social security appeal because “[t]he payoff is too uncertain.”
Costa, 690 F.3d at 1136 (quoting Moreno v. City of Sacramento, 534 F.3d
1106, 1112-13 (9th Cir. 2008)). The court noted that social security cases by
their very nature are fact-intensive and require careful review of the
administrative record, making the adjective “routine” “a bit of a misnomer.” Id.
at 1134 n.1. Instead, the court cautioned deference to the “winning lawyer’s
professional judgment as to how much time he was required to spend on the
case.” Id. at 1136. The court held that a district court can reduce an
attorney’s fee award by up to 10 percent without detailed explanation, but
larger cuts required more specific explanation. Id.
The court rejected the lower court’s application of a “rule of thumb” of 20
to 40 hours for a “routine” social security case. Id. The court noted surveying
fee awards in similar cases was useful in determining the reasonable hourly
rate, but it was “far less useful for assessing how much time an attorney can
reasonably spend on a specific case because that determination will always
depend on case-specific factors including” the size of the administrative record,
the novelty and complexity (and number) of legal issues, the procedural history
and when counsel was retained. Id. at 1136.
In Hogan v. Astrue, 539 F. Supp. 2d 680, 682 (W.D.N.Y. 2008), the court
noted that routine social security cases require an average of 20 to 40 hours of
attorney time. However, the court noted that it did not hesitate to award fees
in excess of the routine 20-40 hours where the facts of a specific case warrant
it. Id. (citing cases where 51.9 hours and 51 hours were awarded). In the
Hogan case itself, the administrative transcript was 353 pages and the
substantive issues involved were not noteworthy; the court found the attorney’s
requested hours of 54.0 to be “slightly excessive.” Id. The court reduced the
fee award by 5 percent. Id.
In Harden v. Comm’r. Social Sec. Admin., 497 F. Supp. 2d 1214 (D. Or.
2007) abrogated on other grounds by Costa v. Comm’r of Social Security, 690
F.3d 1132, 1137 (9th Cir. 2012), the total attorney’s fees requested were
reduced to 40 hours where 24 hours had been billed by an inexperienced
attorney whom, the court held, did not have the right to be trained at the
government’s expense. The court in Coleman v. Astrue, 2007 WL 4438633 at
*3 (N.D. Iowa Dec. 17, 2007), also noted that other courts have held routine
disability benefits cases commonly require 20 to 40 hours of attorney time and
reduced counsel’s hours because the transcript was only 294 pages and the
issues were not particularly complex or novel.
Here, Ms. Ruff’s case required an opinion of 91 pages to discuss and
resolve five distinct legal issues (four issues, one with two subparts). See
Docket No. 19. Ms. Ruff asserted numerous mental and physical impairments.
Id. The administrative record in her case was 950 pages. Although the length
of the administrative record was certainly not unheard of, it was longer than
usual and, thus, not typical. The reduction the Commissioner seeks is not
minor but instead amounts to a 33 percent reduction in Ms. Ruff’s original
attorney hours. The court finds that reduction unwarranted.
Although Costa indicates comparison with attorney awards in other cases
is not very useful in a social security case as to the number of hours expended
by an attorney, that is one of the Johnson factors the Hensley Court found
relevant. Accordingly, the court considers it. In the District of South Dakota,
recent attorney’s fee awards in social security cases have ranged from 24.4 hours
for a rather surgical, single-issue case (Preston v. Berryhill, 5:16-cv-05097-VLD),
to 43.75 hours in a case involving four legal issues which were resolved in a 75page opinion (LeMair v. Colvin, 4:14-cv-04053-LLP). The court notes that in the
latter case, although the attorney hours were only 43.75 hours, the total
attorney’s fee award was higher than what Ms. Ruff seeks herein ($10,879.50)
because the hourly rate requested was higher.
A total of 41.50 hours was awarded for a total of $7,055 in a single-issue
appeal requiring an opinion of only 41 pages to resolve (Bormes v. Berryhill,
4:16-cv-04155-VLD). In Bormes, the Commissioner did not object to the
request for attorney’s fees. In Seay v. Berryhill, 5:16-cv-05096-VLD, Docket
No. 37 (D.S.D. June 15, 2018), attorneys fees of $9,092.28 were awarded based
on total hours expended of 46.78. In Webb v. Berryhill, 5:16-cv-0585-VLD,
Docket No. 32 (D.S.D. May 9, 2018), attorneys fees were awarded based on
total hours of 54.76.
Thus, the court finds Ms. Ruff’s request for attorney’s fees in this case,
although at the slightly higher end of the range, is definitely not an outlier in
either hours expended or the total amount of fees requested. Although the
Commissioner asserts the court should award only 35 hours of work, the
Commissioner appears to have arbitrarily picked this number. She offers no
rationale in support of the figure other than to argue generally that Ms. Ruff’s
request is “too much.”
The Commissioner argues the hours expended are excessive because
Ms. Ruff’s current counsel took over representing Ms. Ruff after the ALJ issued
its opinion and submitted a brief to the Appeals Counsel on Ms. Ruff’s behalf.
Therefore, according to the Commissioner, Ms. Ruff’s counsel had familiarity
with the administrative record prior to appealing to this court and should not
have needed so much time to set forth the issues and facts in support thereof.
The brief submitted at the administrative level, AR379-80, is truly
boilerplate in nature. It does not contain detailed discussion of either the facts
or the law. Furthermore, it was filed only one month after counsel was hired
by Ms. Ruff. This rudimentary brief contains no evidence that counsel was so
familiar with the administrative record and applicable law that he need not
have expended the time he represents he did expend in presenting Ms. Ruff’s
appeal to this court.
Other Johnson factors are the novelty and difficulty of the questions, a
factor which here favors Ms. Ruff because although the legal issues themselves
are recurring, the application of those legal issues to Ms. Ruff’s unique facts
are not. The results obtained also favor Ms. Ruff as she prevailed many of the
issues she raised. The Commissioner tacitly concedes the experience,
reputation and ability of Ms. Ruff’s attorney by not arguing to the contrary on
The “undesirability” of the case also cuts in Ms. Ruff’s favor. Social
security cases present what can fairly be characterized as the “worst” of all
cases economically for a lawyer: they require a high level of skill and
knowledge in a byzantine area of the law, they are contingent fee cases which
are risky because a lawyer may end up working for free if he loses a case, and
that risk is not offset by a higher recovery in successful cases because the fees
are limited by statute.
The court does agree with Costa in this regard: it is highly unlikely that
an attorney will spend unnecessary time on a contingent fee case in the hopes
of inflating a later fee award. The nature of contingent fee cases requires that
attorneys hone their efficiency—the lawyer who doesn’t do so soon finds himor herself unable to earn a living. Ms. Ruff’s attorney has been able to thread
this needle for a number of years, attesting to his ability to handle social
security cases efficiently.
Based on the foregoing facts, law and analysis, it is hereby
ORDERED that plaintiff Sherry Ruff’s motions for attorney’s fees, costs,
and expenses [Docket No. 22 & 27] are granted. Plaintiff is awarded Equal
Access to Justice Act (“EAJA”) attorney’s fees of $9,974.40, and sales tax
expenses of $648.34, for total fees and sales tax of $10,622.74, to be paid by
the Social Security Administration. Further, plaintiff is awarded
reimbursement of costs of $400.00 and expenses of $20.73, to be paid by the
Judgment Fund. Funds shall be made payable to plaintiff. After any offset to
satisfy any pre-existing debts the plaintiff may owe to the United States, the
Treasury Department will send the remaining amount to the office of plaintiff’s
DATED February 11, 2019.
BY THE COURT:
VERONICA L. DUFFY
United States Magistrate Judge
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