Unice v. Social Security Administration

Filing 44

REPORT AND RECOMMENDATION re 34 MOTION for Attorney Fees & Costs filed by Susan K. Unice. The Magistrate Judge RECOMMENDS that Plaintiff's motion for attorney's fees and costs pursuant to the Equal Access to Justice Act ( 34 ) be G RANTED in part and DENIED in part, and that Plaintiff be awarded $13,659.76 in EAJA attorney's fees and $493 in costs. Signed by Magistrate Judge Joe Brown on 7/20/18. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(gb)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
SUSAN K. UNICE,
Plaintiff,
v.

NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
Defendant.

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No. 3:16-cv-02469
Judge Trauger
Magistrate Judge Brown

To: The Honorable Aleta A. Trauger, United States District Judge
REPORT AND RECOMMENDATION
Pending before the Court is Plaintiff Susan K. Unice’s motion for attorney’s fees and costs

pursuant to the Equal Access to Justice Act (“EAJA”) (Docket Entry No. 34), seeking $16,943.95
in fees and $493.00 in costs, that was referred to the Magistrate Judge (Docket Entry No. 37). For
the following reasons, the Magistrate Judge RECOMMENDS that this motion be GRANTED in
part and DENIED in part, and that Plaintiff be awarded $13,659.76 in EAJA attorney’s fees and
$493 in costs.
I. BACKGROUND
After receiving a fully favorable disability decision from an administrative law judge (“ALJ”)
in 2010, Plaintiff, Susan K. Unice, and her daughter, Lauren M. Unice, were awarded Title II
disability benefits, which began on March 1, 2008, and continued through July 2012. See

administrative record (Docket Entry No. 16, Tr. 44-62, 116-17).1 Defendant, Commissioner of

1

Citations to the administrative record (“AR”) are to the Bates stamp at the top right corner
of the page.

Social Security (“Commissioner”), notified Plaintiff in July 2011 and again in August 2012 that her
disability ended in October 2009 because she engaged in substantial gainful activity (“SGA”) and
that Plaintiff’s SGA made her and her daughter ineligible for benefits as of January 2010. Id. at
67-69, 74-76, 81-86. Defendant mailed Plaintiff invoices requesting repayment of $56,097.20, the
amount paid to Plaintiff and her daughter from January 2010 to July 2012. Id. at 91-98.
Plaintiff requested a waiver of the overpayment in January 2013, which was ultimately
denied by the administrative law judge (“ALJ”). Id. at 20-35. The ALJ specifically found that
Plaintiff was overpaid $56,097.20 in benefits between January 1, 2010 and July 1, 2012; Plaintiff
was not at fault for causing the overpayment; recovery of the overpayment would not defeat the
purpose of Title II of the Social Security Act and would not be against equity and good conscience;
and recovery of the overpayment would not be waived. Id. at 25-27. The Appeals Council declined
to review the ALJ’s decision. Id. at 3-7.
Plaintiff filed this action pursuant to 42 U.S.C. § 405(g) to obtain judicial review of the final
decision of the Commissioner, denying Plaintiff’s request for a waiver of adjustment or recovery of
an overpayment. The Magistrate Judge summarized Plaintiff’s assertions of error as follows: (1) the
ALJ erred by finding Plaintiff was overpaid; (2) the ALJ erred by concluding waiver of adjustment
or recovery of overpaid benefits was not against equity and good conscience; (3) the ALJ abused
her discretion by finding waiver of adjustment or recovery of overpaid benefits does not defeat the
purpose of Title II; and (4) the ALJ deprived Plaintiff of her rights to due process and equal
protection by failing to reinstate her benefits. (Docket Entry No. 29, at 6).
Although Plaintiff resided in Tennessee, because the ALJ’s decision was rendered in the
District of Arizona, the Magistrate Judge applied Ninth Circuit law to the merits of the ALJ’s

2

decision. Id. at 5. The Magistrate Judge concluded that the ALJ’s finding of overpayment required
clarification on remand. Id. at 10-11. The Magistrate Judge stated, “Absent any indication which
test the ALJ used to conclude Plaintiff was engaged in SGA from January 2010 to July 2012, the
Commissioner’s decision cannot be thoroughly scrutinized, and the Court cannot say for certain that
the correct legal standards were applied.” Id. at 11. The Magistrate Judge stated that although the
Commissioner’s finding may be correct, it was not the “Court’s duty to construct the logical
pathway to that conclusion,” noting that the record contained evidence that was favorable to both
sides on this issue. Id.
Thus, concluding that the ALJ’s decision did not clearly articulate the test or tests used to
find Plaintiff was engaged in SGA from January 2010 to July 2012, and that the evidence presented
was not so clearly one-sided as to direct a decision, the Magistrate Judge recommended that the
ALJ’s decision be reversed in part and remanded for the Commissioner to clarify the rationale
supporting the overpayment finding. Id. at 12. As to whether the ALJ erred by concluding waiver
of adjustment or recovery of overpaid benefits was not against equity and good conscience or
whether the ALJ abused her discretion by finding waiver of adjustment or recovery of overpaid
benefits did not defeat the purpose of Title II, the Magistrate Judge concluded that substantial
evidence supported the ALJ’s decision. Id. at 12-18. The Magistrate Judge also concluded that
Plaintiff’s claim that the ALJ deprived her of her rights to due process and equal protection was
without merit. Id. at 19. The District Court overruled Plaintiff’s objections to the Magistrate
Judge’s Report and Recommendation (“R&R”) and accepted and adopted the Magistrate Judge’s
R&R. (Docket Entry Nos. 31 and 32).
II. CONTENTIONS OF THE PARTIES

3

Defendant contends that Plaintiff’s application for attorney’s fees should be denied because
the position of the Commissioner was substantially justified. (Docket Entry No. 36, at 1).
Alternatively, Defendant contends that Plaintiff’s hours billed are excessive and should be
significantly reduced. Id. In reply, Plaintiff contends that the number of issues that she prevailed
upon is irrelevant; that contrary to Defendant’s contention, the Court determined that the underlying
facts did not clearly support a finding that Plaintiff’s self-employment constituted SGA; and that the
Court found that the ALJ did not apply the correct legal standard. (Docket Entry No. 40, at 2-3).
III. LAW AND ANALYSIS
A. EAJA Requirements
Because the Magistrate Judge applied Ninth Circuit precedent in his R&R analyzing
Plaintiff’s claims, the Magistrate Judge will apply Ninth Circuit law in addressing Plaintiff’s
application for attorney’s fees and costs. “Although eligibility for fees is established upon meeting
the conditions set out by the EAJA, the district court has substantial discretion in fixing the amount
of an EAJA award.” Catholic Soc. Servs., Inc. v. Napolitano, 837 F. Supp. 2d 1059, 1071 (E.D. Cal.
2011) (citing Comm’r, I.N.S. v. Jean, 496 U.S. 154, 163 (1990)). “The decision whether to award
fees under the EAJA, including the district court’s conclusion that the government’s position was
substantially justified, is reviewed for abuse of discretion.” Gutierrez v. Barnhart, 274 F.3d 1255,
1258 (9th Cir. 2001) (citing Pierce v. Underwood, 487 U.S. 552, 559 (1988)). The EAJA provides:
Except as otherwise specifically provided by statute, a court shall award to a
prevailing party other than the United States fees and other expenses, in addition to
any costs awarded pursuant to subsection (a), incurred by that party in any civil
action (other than cases sounding in tort), including proceedings for judicial review
of agency action, brought by or against the United States in any court having
jurisdiction of that action, unless the court finds that the position of the United States
was substantially justified or that special circumstances make an award unjust.

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28 U.S.C. § 2412(d)(1)(A). “Thus, to be eligible for attorney fees under the EAJA: (1) the claimant
must be a ‘prevailing party’; (2) the government’s position must not have been ‘substantially
justified’; and (3) no ‘special circumstances’ exist that make an award of attorney fees unjust.”
Budnik v. Berryhill, No. 3:16-CV-05343-KLS, 2017 WL 932173, at *1 (W.D. Wash. Mar. 9, 2017).2
“An applicant for disability benefits becomes a prevailing party for the purposes of the EAJA
if the denial of her benefits is reversed and remanded regardless of whether disability benefits
ultimately are awarded.” Gutierrez, 274 F.3d at 1257. Defendant does not dispute that Plaintiff is
a prevailing party or argue that no “special circumstances” exist that make an award of attorney fees
unjust. Whether Defendant’s position was “substantially justified” is the only EAJA requirement
at issue.
“The EAJA creates a presumption that fees will be awarded to prevailing parties. However,
Congress did not intend fee shifting to be mandatory.” Flores v. Shalala, 49 F.3d 562, 567 (9th Cir.
1995), as amended on denial of reh’g (June 5, 1995) (citation omitted). “‘It is the government’s
burden to show that its position was substantially justified.’” Tobeler v. Colvin, 749 F.3d 830, 832
(9th Cir. 2014) (citation omitted). “The government’s failure to prevail does not raise a presumption
that its position was not substantially justified.” Kali v. Bowen, 854 F.2d 329, 332 (9th Cir. 1988).
“‘Substantially justified’ means ‘justified in substance or in the main’--that is, justified to
a degree that could satisfy a reasonable person.’ A substantially justified position must have a

2

Pursuant to 28 U.S.C. § 2412(d)(1)(B), the claimant is also required to submit to the Court
any fee application within thirty days of final judgment in the action along with an itemized
statement in support. Comm’r, I.N.S. v. Jean, 496 U.S. 154, 158 (1990). An EAJA applicant has
the benefit of the entire 60-day appeal period in F.R.A.P Rule 4(a)(1)(B), plus the 30-day period in
§ 2412(d)(1)(B), to file a timely EAJA application. Hoa Hong Van v. Barnhart, 483 F.3d 600, 61112 (9th Cir. 2007). Plaintiff’s application was timely.
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reasonable basis both in law and fact.” Gutierrez, 274 F.3d at 1258 (citations and internal quotation
marks omitted). “‘The government’s position must be substantially justified at each stage of the
proceedings.’” Shafer v. Astrue, 518 F.3d 1067, 1071 (9th Cir. 2008) (quoting Corbin v. Apfel, 148
F.3d 1051, 1052 (9th Cir. 1998)). “In making a determination of substantial justification, the court
must consider the reasonableness of both ‘the underlying government action at issue’ and the
position asserted by the government in ‘defending the validity of the action in court.’” Al-Harbi v.
I.N.S., 284 F.3d 1080, 1084 (9th Cir. 2002) (citation and internal quotation marks omitted); Tobeler,
749 F.3d at 832 (“The position of the United States includes both the government’s litigation
position and the underlying agency action giving rise to the civil action.” (citation and internal
quotation marks omitted)). Moreover, when courts determine “whether the government’s litigation
position is substantially justified, ‘the EAJA . . . favors treating a case as an inclusive whole, rather
than as atomized line items.’” Id. at 1084-85 (citations omitted). Thus, courts “‘must focus on two
questions: first, whether the government was substantially justified in taking its original action; and,
second, whether the government was substantially justified in defending the validity of the action
in court.’” Gutierrez, 274 F.3d at 1259 (quoting Kali, 854 F.2d at 332); see Shafer, 518 F.3d at 1071
(“Where . . . the ALJ’s decision was reversed on the basis of procedural errors, the question is not
whether the government’s position as to the merits of Shafer’s disability claim was substantially
justified. Rather, the relevant question is whether the government’s decision to defend on appeal
the procedural errors committed by the ALJ was substantially justified.”) (emphasis in original and
citations and footnote omitted).
“‘In evaluating the government’s position to determine whether it was substantially justified,
[courts] look to the record of both the underlying government conduct at issue and the totality of

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circumstances present before and during litigation.’” Sampson v. Chater, 103 F.3d 918, 921 (9th
Cir. 1996) (quoting Barry v. Bowen, 825 F.2d 1324, 1330 (9th Cir. 1987)). The Ninth Circuit has
stated:
While this circuit has been clear that when an agency’s decision is unsupported by
substantial evidence it is a strong indication that the position of the United States is
not substantially justified, this circuit has never stated that every time this court
reverses and remands the ALJ’s decision for lack of substantial evidence the
claimant should be awarded attorney’s fees.
Campbell v. Astrue, 736 F.3d 867, 869 (9th Cir. 2013) (emphasis in original).
Here, Defendant has failed to meet its burden of showing that its pre-litigation position was
substantially justified. As the Magistrate Judge previously stated, “Noticeably absent from the
ALJ’s decision is any reference to the legal authority for this finding of SGA,” and “nowhere in the
decision did the ALJ reference 20 C.F.R. § 404.1575, let alone the tests for determining SGA from
self-employment activities.” (Docket Entry No. 29, at 11). The Magistrate Judge concluded that
“[a]bsent any indication which test the ALJ used to conclude Plaintiff was engaged in SGA from
January 2010 to July 2012, the Commissioner’s decision [could not] be thoroughly scrutinized, and
the Court [could not] say for certain that the correct legal standards were applied. Id. The
Magistrate Judge noted that the Commissioner’s finding “may be correct, but it was not this Court’s
duty to construct the logical pathway to that conclusion.” Id. In fact, the Magistrate Judge noted
that the record contained evidence favorable to both sides on the issue. Id. However, the ALJ’s
decision was devoid of any legal authority or analysis on this issue.
Accordingly, the Magistrate Judge concludes that Plaintiff is entitled to attorney’s fees
pursuant to the EAJA.
B. Lodestar Calculation

7

Once a court determines that a party is eligible for EAJA fees, it applies the “lodestar”
method to determine what constitutes a “reasonable” attorney’s fee. Costa v. Comm’r of Soc. Sec.
Admin., 690 F.3d 1132, 1135 (9th Cir. 2012). “To calculate the lodestar amount, the court multiplies
‘the number of hours reasonably expended on the litigation . . . by a reasonable hourly rate.’” Id.
(citing Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)) (footnote omitted). However, “counsel for
the prevailing party should exercise ‘billing judgment’ to ‘exclude from a fee request hours that are
excessive, redundant, or otherwise unnecessary’ as a lawyer in private practice would do.” Id.
(citing Hensley, 461 U.S. at 434); see Jean, 496 U.S. at 163 (“Eligibility for fees is established upon
meeting the four conditions set out by the statute, but a district court will always retain substantial
discretion in fixing the amount of an EAJA award. Exorbitant, unfounded, or procedurally defective
fee applications . . . are matters that the district court can recognize and discount.”).
1. Hourly Rate
Under the EAJA, “attorney fees shall not be awarded in excess of $125 per hour unless the
court determines that an increase in the cost of living or a special factor, such as the limited
availability of qualified attorneys for the proceedings involved, justifies a higher fee.” 28 U.S.C.
§ 2412(d)(2)(A). “The Ninth Circuit has provided that, except in unusual circumstances, a cost of
living increase should be granted to adjust for inflation.” Catholic Soc. Servs., 837 F. Supp. 2d at
1072 (citing Animal Lovers Vol. Assn. v. Carlucci, 867 F.2d 1224, 1227 (9th Cir. 1989), abrogated
on other grounds by Sorenson v. Mink, 239 F.3d 1140, 1149 (9th Cir. 2001)). “[C]ost-of-living
increases are calculated by multiplying the $125 statutory maximum hourly rate by the annual
average consumer price index figure for all urban consumers (‘CPI-U’) for the years in which the

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attorney’s work was performed and dividing by the CPI-U figure for March 1996 (155.7),3 the
effective date of the statutory maximum hourly rate.” Nadarajah v. Holder, 569 F.3d 906, 918 (9th
Cir. 2009) (citing Thangaraja v. Gonzales, 428 F.3d 870, 876-77 (9th Cir. 2005)).
Here, Plaintiff seeks fees for 43.7 hours billed in 2016 and 43.5 hours billed in 2017.
Defendant does not contest Plaintiff’s request for a cost of living increase for inflation. Courts use
an annualized figure to calculate attorney’s fees.
When an attorney has billed hours in multiple months spread out over the span of a
single year, and the annual CPI-U for that year is available, it is more practical to
simply run the formula once applying the annual CPI-U for all the hours billed in that
year. Indeed, the Ninth Circuit only requires that this Court “calculate the
cost-of-living adjustment according to the CPI-U for the year in which the fees were
earned.”
Jawad v. Barnhart, 370 F. Supp. 2d 1077, 1090 (S.D. Cal. 2005) (emphasis in original) (quoting
Sorenson,239 F.3d at 1149); Hopper v. Colvin, No. 6:13-CV-01525-HZ, 2015 WL 2094019, at *5
(D. Or. Apr. 30, 2015); Correno v. Comm’r of Soc. Sec., No. CV 07-1678-PHXSMM, 2008 WL
5246455, at *1 n.1 (D. Ariz. Dec. 17, 2008) (“The national CPI-U, rather than the regional CPI-U,
is the proper source from which to determine the COLA in this case, given Ninth Circuit case law
and the statutory language of the EAJA.”) (citing Jawad, 370 F. Supp. 2d at 1089-90). Using the
CPI-U EAJA maximum rates for each year in which fees are claimed, the applicable statutory
maximum hourly rate under the EAJA for 2016, adjusted for increases in the cost of living, is
$192.68, and for 2017 is $196.79.4

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“[T]he EAJA set a maximum fee of $75 per hour, which was increased by amendment in
1996 to $125 per hour for cases commenced on or after March 29, 1996.” Sorenson v. Mink, 239
F.3d 1140, 1148 (9th Cir. 2001).
4

See U.S. Courts for the Ninth Circuit, Statutory Maximum Rates under the Equal Access
to Justice Act, https://www.ca9.uscourts.gov/content/view.php?pk_id=0000000039.
9

Accordingly, the Magistrate Judge concludes that a cost of living adjustment is appropriate
and that the requested hourly rates of $192.68 for hours billed in 2016 and $196.79 for hours billed
in 2017, sought by Plaintiff and uncontested by Defendant, are reasonable.
2. Number of Hours
A party seeking fees must submit “an itemized statement . . . stating the actual time expended
and the rate at which fees and other expenses were computed.” 28 U.S.C. § 2412(d)(1)(B). The
appropriate number of hours includes all time “reasonably expended in pursuit of the ultimate result
achieved, in the same manner that an attorney traditionally is compensated by a fee-paying client
for all time reasonably expended on a matter.” Hensley, 461 U.S. at 431, 430 n.4. However,
“excessive, redundant, or otherwise unnecessary” hours should be excluded from any fee award.
Id. at 434. “‘Appropriate hours include all time reasonably expended pursuing the result achieved,
i.e., success on the merits and seeking recovery of attorney’s fees under the EAJA.’” Mercado v.
Berryhill, No. 16-CV-04200-BLF, 2018 WL 398467, at *2 (N.D. Cal. Jan. 12, 2018) (quoting Swan
v. Colvin, No. 15-CV-03558-JCS, 2016 WL 7048984, at *3 (N.D. Cal. Dec. 5, 2016)).
“A district court has wide latitude in determining the number of hours that were reasonably
expended by the prevailing lawyers, but it must provide enough of an explanation to allow for
meaningful review of the fee award.” Sorenson, 239 F.3d at 1146. The Ninth Circuit has stated:
Many district courts have noted that twenty to forty hours is the range most often
requested and granted in social security cases. See Patterson v. Apfel, 99 F.Supp.2d
1212, 1214 n. 2 (C.D. Cal. 2000) (collecting district court cases). While district
courts may consider this fact in determining the reasonableness of a specific fee
request, courts cannot drastically reduce awards simply because the attorney has
requested compensation for more than forty hours or make reductions with a target
number in mind. Instead, district courts must explain why the amount of time
requested for a particular task is too high. Any other approach fails to give deference
to the winning lawyer’s professional judgment, as required by Moreno v. City of
Sacramento, 534 F.3d 1106, 1112 (9th Cir. 2008).
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Costa, 690 F.3d at 1136. However, “a district court can impose a reduction of up to 10 percent--a
‘haircut’--based purely on the exercise of its discretion and without more specific explanation.” Id.
(citing Moreno, 534 F.3d at 1112); Neil v. Comm’r of Soc. Sec., 495 F. App’x 845, 846-47 (9th Cir.
2012).
Plaintiff seeks fees for 43.7 hours billed in 2016 and 43.5 hours billed in 2017 for a total of
87.2 hours of work spent in this action. (Docket Entry No. 34-4, at 3). Defendant contends that
some of the hours are excessive and should be excluded, as Plaintiff’s itemization of hours reveals
overcharges for administrative and clerical tasks. (Docket Entry No. 36, at 1, 4). Defendant cites
that “between August 24, 2016 and December 1, 2016, Plaintiff’s attorney charged a total of 17.6
hours for pro hac vice and filing her complaint, including clerical tasks like preparing service, and
speaking with the clerk.” Id. at 4. Defendant also contests Plaintiff charging an unspecified amount
of time on December 30, 2016, for the clerical task of ECF filing Plaintiff’s brief; proofreading and
ECF filing Plaintiff’s reply on March 22, 2017; and Plaintiff charging 1.5 hours on November 6,
2017, for finalizing and filing the application for fees. Id. at 4-5. Defendant further contends that
“with the 26.1 hours charged for her initial brief and 18.8 hours charged for the objection to the
Magistrate’s Report and Recommendation, Plaintiff’s time charged for briefing the case is
excessive.” Id. at 5.
A district court may in its discretion decline to award attorney’s fees “for purely clerical
tasks such as filing documents and preparing and serving summons.” Neil, 495 F. App’x at 847
(citing Missouri v. Jenkins, 491 U.S. 274, 288 n.10 (1989) and Nadarajah, 569 F.3d at 921); Osier
v. Comm’r Soc. Sec. Admin., No. 3:16-CV-01061-MA, 2017 WL 3297514, at *3 (D. Or. Aug. 2,
2017) (“It is well-settled that the court may reduce an attorney’s hours for time spent performing

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clerical work.”). “Tasks considered clerical include, but are not limited to, filing motions with the
court, filling out and printing documents, preparing affidavits and drafting certificates of service,
organizing files, calendaring dates, rescheduling depositions, and sending documents.” Sterling
Savings Bank v. Sequoia Crossing, LLC, No. 09-cv-0555-AC, 2010 WL 3210855, *7 (D. Or. August
11, 2010); Woll v. Comm’r Soc. Sec. Admin., No. 3:13-CV-01877-MA, 2015 WL 3562191, *2 (D.
Or. June 5, 2015) (reducing EAJA fee award for time spent filing complaint); Hoefle v. Colvin, No.
1:12-CV-01719-JLT, 2014 WL 5217041, at *4 (E.D. Cal. Oct. 14, 2014) (“For example, the time
spent to e-file documents is routinely found to be clerical work that is non-compensable under the
EAJA.”); Brandt v. Astrue, No. CIV. 08-0657TC, 2009 WL 1727472, at *3 (D. Or. June 16, 2009)
(clerical tasks include “preparing a summons and civil cover sheet with attachment.”); but see Vick
v. Astrue, No. 1:10-CV-00562-CWD, 2012 WL 4435290, at *1-3 (D. Idaho Sept. 24, 2012) (granting
fees for pro hac vice application). A “district court has ‘authority to reduce hours that are billed in
block format[,]’ because ‘block billing makes it more difficult to determine how much time was
spent on particular activities.’” Neil, 495 F. App’x at 847 (quoting Welch v. Metro. Life Ins. Co.,
480 F.3d 942, 948 (9th Cir. 2007) (brackets added in Neil)).
The Magistrate Judge will address below the hours billed between August 24, 2016 and
December 1, 2016.5 From August 24, 2016 to August 31, 2016, Plaintiff seeks fees for 10.1 hours
of work. (Docket Entry No. 34-4, at 1).

5

See “Itemization of Services” chart, Docket Entry No. 34-4, at 1-3.
12

8/24/16

Complete federal civil cover sheet and other civil action initiating documents and 4.0
forms (such as Complaint, Summons, and Motion to appear pro hac vice),
including legal research into the specific local and general law associated with
claimant's appeal, such as statutes from Title 42, Chapter 7 and related federal
case law. Contact clerk of court in Tennessee for instructions. Contact attorneys
referred by clerk for referrals of local counsel in Nashville area. Also, telephone
conference with client to discuss pro hac vice. Prepare and send to Arizona
District Court request for certificate of good standing.

8/30/16

Telephone conference with clerk at Middle District Court of Tennessee about 2.3
filing case in that district. Prepare Motion to appear pro hac vice. Continue
drafting Complaint and documents for submission to Tennessee District Court.
Draft Motion to appear pro hac vice and to waive local counsel requirement.

8/31/16

Completed draft of revised Complaint and documents for submission to 3.2
Tennessee District Court. Spoke with client on telephone about Complaint. Sent
revised Complaint to client for review and signature.

8/31/16

Respond to client’s e-mail regarding the questions she posed about her 0.6
overpayment case. Telephone conference with client to explain reasons for
method of filing Complaint. Complaint had to be signed by her and filed by
undersigned counsel because undersigned's motion to appear pro hac vice has not
been granted, yet.

The Magistrate Judge notes that Plaintiff’s use of block billing creates difficulty in
determining how much time was spent on certain activities and that the billing on August 24, 2016,
includes clerical tasks, such as completing civil cover sheet and initiating documents and forms. The
Magistrate Judge also notes that Plaintiff billed 4.0 hours for the tasks performed on August 24,
2016, which include drafting the complaint. However, Plaintiff also included hours for drafting the
complaint on August 30 and 31. The Magistrate Judge further notes that Plaintiff billed time for
“[c]ontacting the clerk of court in Tennessee for instructions” on August 24, 2016, and for a
“[t]elephone conference with clerk at Middle District Court of Tennessee about filing case in that
district” on August 30, 2016, and that Plaintiff makes two entries on August 30, 2016, about

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preparing “motion to appear pro hac vice.” Thus, on the first three entries, Plaintiff requests fees
for a total of 9.5 hours. The Magistrate Judge finds such a claim of hours excessive.
As to the first two entries, the Magistrate Judge will reduce the 6.3 hours requested by 3.0
hours. This reduction reflects the clerical tasks blocked billed on August 24 and 30, 2016; the vague
and undeterminable amount of time claimed for drafting the complaint; Plaintiff’s duplicative calls
to the clerk for instructions on August 24 and 30; and Plaintiff’s duplicative entries and unspecified
time regarding the motion to appear pro hac vice on August 30, 2016.
As to Plaintiff’s request for 3.2 hours on August 31, 2016, the Magistrate Judge will grant
these hours. However, the Magistrate Judge will deny the 0.6 hours requested as being duplicative
and excessive as the Magistrate Judge credited the attorney’s communication with his client in the
previously allowed 3.2 hours.
Plaintiff requests 2.2 hours for “Review mail from client containing signed Complaint for
filing in her overpayment civil action. Prepare letter to Tennessee Middle District Court clerk.
Prepare mail to court filing civil action. Mail letter to clerk,” on September 7, 2016. Id. The
Magistrate Judge finds these hours excessive, as Plaintiff is seeking time for reviewing a signed
complaint, along with time involving the clerical work of mailing documents to the Court. The
Magistrate Judge will reduce this request by 1.6 hours.
Plaintiff requests 0.3 hours for “Telephone conversations with docket clerk and Judge
Brown’s clerk regarding filings and pro hac vice motion,” on September 21, 2016, that will be
denied as unnecessary and as clerical work. Id. Plaintiff’s pro hac vice motion was filed September
9, 2016, and therefore any telephone call regarding the motion would not have required any legal
expertise.

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Plaintiff’s September 24, 2016 entry, “Prepare three summons for service to US Attorney,
Chief Counsel for Social Security, and US Attorney General’s office,” for 1.7 hours will be denied
as clerical work. Id.
The Magistrate Judge will grant Plaintiff’s October 4, 2016 request for 0.2 hours for
“Contact clerk of court regarding application for access to ECF.” Id.
Plaintiff requests 3.1 hours for the following work:
10/17/16

Prepare Return of Service and send to Court.

1.7

10/21/16

Return call to Delana Thompson (clerk of the court) about return of service.

0.2

10/25/16

File three Summons in Federal District Court in Tennessee using ECF. Retrieve 0.8
and file documents to client's folder.

12/01/16

Discuss recent scheduling order - Document 17 - with judge’s clerk.

0.4

The Magistrate Judge will deny the first three entries as clerical work and the last entry,
regarding discussing the scheduling Order, as unnecessary.
Defendant contests Plaintiff charging an unspecified amount of time on December 30, 2016,
for clerical tasks. Plaintiff charged 13.6 hours for the following work: “Continue research, review,
outline, and drafting of brief and motion for judgment based upon the administrative record.
Proofreading and revising brief. Filed opening brief and motion using ECF, which was actually
entered on 12/31/2016 due to time zone discrepancy.” Id. at 2. The Magistrate Judge will reduce
this request by 0.5 hours to reflect the unspecified clerical time billed for filing the brief. Plaintiff
billed 12.5 hours from December 26 to December 29, 2016 on the motion for judgment on the
administrative record. Id. at 1. Thus, in addition to the 13.1 hours allowed on December 30, 2016,
Plaintiff charged 25.6 hours for the initial brief. The Magistrate Judge finds this amount reasonable.
As to the 13.1 hours spent on the arguments in Plaintiff’s objections to the Report and
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Recommendation, the Magistrate Judge finds this time reasonable.6 See Williams v. Astrue, No.
1:10-CV-00194-CL, 2012 WL 3527224, at *2 (D. Or. June 26, 2012), report and recommendation
adopted, No. 1:10-CV-194-CL, 2012 WL 3527207 (D. Or. Aug. 15, 2012) (“It was not unreasonable
for counsel to file objections as an advocate for his client and the arguments, while not successful,
were not unreasonable.”).
Next, Defendant contends that Plaintiff’s 5.3 hours charged for filing a response and
objection in opposition to Defendant being granted leave to file a sur-reply should be denied as
unnecessary and that, of this time billed, Plaintiff improperly included clerical work performed on
March 22, 2017 for filing the response. (Docket Entry No. 36, at 5). Defendant’s request to file a
sur-reply was not an unusual request. Plaintiff’s objection, requesting to strike Defendant’s surreply, was unsuccessful and unnecessary. Accordingly, the Magistrate Judge concludes that the 5.3
hours sought should be denied.
Further, Defendant contends that Plaintiff “has charged for excessive telephone calls with
the client, totaling 3.9 hours on February 17, 2017, March 27, 2017, July 12, 2017, and July 21,
2017.” Id. These charges are itemized as follows:
2/17/17

After cursory review of defendant's response, telephone conference with client
discussing defendant’s response in her overpayment case.

0.9

3/27/17

Telephone conference with client regarding overpayment case in federal court
and overview of recent filings.

1.5

7/12/17

Telephone conference with client about re-establishing her discontinued 1.0
Medicare benefits. As a consequence of the overpayment issue, client has lost
her Medicare benefits.

6

Defendant incorrectly states that Plaintiff billed 18.8 hours on the objections. Plaintiff billed
0.6 hours on July 12, 2017; 2.6 hours on July 25, 2017; and 9.9 hours on July 26, 2017. (Docket
Entry No. 34-4, at 2-3).
16

7/21/17

Second telephone conference with client about re-establishing her discontinued 0.5
Medicare benefits.

(Docket Entry No. 34-4, at 2-3).
“A lawyer has an ethical responsibility to communicate with a client. This responsibility
includes keeping the client reasonably informed about the status of the matter and explaining the
matter to the extent reasonably necessary to permit the client to make informed decisions regarding
the representation.” Quade ex rel. Quade v. Barnhart, 570 F. Supp. 2d 1164, 1167 (D. Ariz. 2008).
However, the Magistrate Judge finds the hours requested are a bit excessive. The Magistrate Judge
will reduce the 1.5 hours requested on March 27, 2017, by 0.5, as excessive and reflecting denial
of the time associated with Plaintiff’s objection to Defendant’s sur-reply. The Magistrate Judge will
also deny the 0.5 hours requested on July 21, 2017, as duplicative and excessive, given that
Plaintiff’s counsel spoke with Plaintiff concerning the same topic nine days earlier. Accordingly,
the Magistrate Judge will approve 2.9 hours for telephone calls with the client as reasonable.
Lastly, Defendant objects to Plaintiff charging 1.5 hours on November 6, 2017, for finalizing
and filing his application for fees. (Docket Entry No. 36, at 5). The entry in question provides:
“Prepare affidavit (notarize), order, motion, and brief for EAJA attorney’s fees in Sixth Circuit
overpayment case for filing and service.” (Docket Entry No. 34-4, at 3). Plaintiff also billed 4.2
hours on October 9, 2017, for work described as follows: “Prepare/draft affidavit, order, motion, and
brief for EAJA attorney’s fees in Sixth Circuit overpayment case.” Id. A plaintiff is entitled to
reimbursement for the hours of attorney time reasonably spent on an EAJA fee application.
McMahon v. Astrue, 617 F. Supp. 2d 869, 873 n.2 (D. Ariz. 2008). Accordingly, the Magistrate
Judge finds that the total 5.7 hours billed on the EAJA application are reasonable. Lopez v. Astrue,

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No. 1:10CV1012 AWI GSA, 2012 WL 2052146, at *3 (E.D. Cal. June 6, 2012), report and
recommendation adopted, No. 1:10-CV-01012 OWW, 2012 WL 2995486 (E.D. Cal. July 23, 2012)
(“Preparing an itemized time sheet for an EAJA fee motion is not a clerical task as counsel must
review the time records to make sure the time is properly billed to the client, ensure that time billed
is accurate, and redact any privileged information.”); Em v. Astrue, No. 1:10-CV-01414-LJO, 2012
WL 691669, at *6 (E.D. Cal. Mar. 2, 2012), report and recommendation adopted, No.
1:10-CV-01414-LJO, 2012 WL 1019963 (E.D. Cal. Mar. 26, 2012) (“[T]he time spent preparing a
declaration in support of an EAJA application and reviewing time entries to ensure they contain no
confidential information is appropriate and compensable.”). In so ruling, the Magistrate Judge
considered Plaintiff not requesting fees in conjunction with her reply (Docket Entry No. 40) in
support of the application for EAJA fees.
In summary, the Magistrate Judge will reduce the 43.7 hours requested for 2016 by 10.8
hours, resulting in 32.9 hours and an award of attorney’s fees in the amount of $6339.17 (32.9 x
$192.68) for hours worked in 2016. The Magistrate Judge will reduce the 43.5 hours requested for
2017 by 6.3 hours, resulting in 37.2 hours and an award of attorney’s fees in the amount of $7320.59
(37.2 x $196.79). Therefore, the Magistrate Judge concludes that the total amount of billable hours
in this action is 70.1 (32.9 hours in 2016 and 37.2 hours in 2017) at the uncontested hourly rates of
$192.68 in 2016 and 196.79 in 2017, for a total award of $13,659.76 in EAJA attorney’s fees.
3. Costs
As a prevailing party, Plaintiff is entitled to an award of fees and expenses under the EAJA.
See 28 U.S.C. § 2412(d)(1)(A); Hardisty v. Berryhill, No. 315CV00265LRHWGC, 2017 WL
2791050, at *4 (D. Nev. Apr. 27, 2017), report and recommendation adopted, No.

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315CV00265LRHWGC, 2017 WL 2784340 (D. Nev. June 27, 2017) (“Under the EAJA, a judgment
for costs, as set forth in 28 U.S.C. § 1920, ‘may be awarded to the prevailing party in any civil action
brought by or against the United States or any agency or official of the United States acting in his
or her official capacity in any court having jurisdiction of such action.’” quoting 28 U.S.C. §
2412(a)(1)); League of Wilderness Defs.-Blue Mountains Biodiversity Project v. Smith, 491 F.
Supp.2d 980, 989 (D. Or. 2007) (“EAJA authorizes reimbursement for litigation expenses and costs,
such as filing fees, traveling expenses and postage.”). Here, Plaintiff requests costs for $400 for the
filing fee, $18 for the certificate of good standing, and $75 for pro hac vice filing fee, for a total of
$493. The Magistrate Judge grants Plaintiff’s request for $493 in costs under the EAJA. See Vick,
2012 WL 4435290, at *1-3 (granting costs for pro hac vice fees).
4. Direct Payment of Attorney’s Fees
Plaintiff submits an agreement that assigned any award of EAJA attorney’s fees and costs
to her attorney. (Docket Entry No. 34-2, at 1). Defendant asserts that if the Court orders payment
of EAJA fees, Defendant will make the fee payable to Plaintiff’s attorney provided that Plaintiff
does not owe a debt to the government, in which case the United States Department of Treasury will
not be precluded from making the entire EAJA fee payable to Plaintiff and then using the EAJA fee
as an offset to the debt. (Docket Entry No. 36, at 5). Plaintiff objects arguing that “‘[w]hether the
overpayment or part of the overpayment is past due and legally enforceable’ depends upon issuance
of written findings describing the supporting rationale of the agency’s final action after completion

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of a hearing and subsequent review of the record,” and therefore the “the overpayment debt is not
legally enforceable.” (Docket Entry No. 40, at 5).7
In Astrue v. Ratliff, 560 U.S. 586 (2010), the Supreme Court held that EAJA fee awards are
payable to the plaintiff, not the plaintiff’s attorney, and are therefore subject to an offset to satisfy
any pre-existing debt the plaintiff may owe to the federal government. Id. at 591-93. There is no
definitive information on whether Plaintiff owed a pre-existing debt prior to this action. Also,
Plaintiff “assigned her claim to her attorney, but that assignment runs afoul of the Assignment of
Claims Act, 31 U.S.C. § 3727(b), which forbids the assignment of claims against the U.S.
government until after those claims are actually allowed.”

Matthews v. Astrue, No. CIV

11-290-TUC-LAB, 2013 WL 500955, at *1 (D. Ariz. Feb. 11, 2013); Yesipovich v. Colvin, 166 F.
Supp. 3d 1000, 1011 (N.D. Cal. 2015). Thus, the Magistrate Judge concludes that the EAJA award
shall be made payable to Plaintiff and delivered to Plaintiff’s attorney; however, if the United States
Department of the Treasury determines that Plaintiff does not owe a federal debt and the
Government waives the requirements of the Assignment of Claims Act, the EAJA award shall be
paid directly to Plaintiff’s attorney pursuant to Plaintiff’s assignment of her interest in the fee award.
Matthews, 2013 WL 500955, at *1; Kirk v. Berryhill, 244 F. Supp. 3d 1077, 1085 (E.D. Cal. 2017);
Yesipovich, 166 F. Supp. 3d at 1011.
IV. RECOMMENDATION
Accordingly, for these reasons, the Magistrate Judge RECOMMENDS that Plaintiff’s
motion for attorney’s fees and costs pursuant to the Equal Access to Justice Act (“EAJA”) (Docket

7

Plaintiff also requests in her reply an order preventing the government from applying any
fees and costs awarded to her overpayment debt, as well as preventing further collection of the
overpayment, until agency action is final. Such a request for relief is not proper in a reply.
20

Entry No. 34) be GRANTED in part and DENIED in part, and that Plaintiff be awarded

$13,659.76 in EAJA attorney’s fees and $493 in costs.
The parties have fourteen (14) days after being served with a copy of this Report and
Recommendation (“R&R”) to serve and file written objections to the findings and recommendation
proposed herein. A party shall respond to the objecting party’s objections to this R&R within
fourteen (14) days after being served with a copy thereof. Failure to file specific objections within
fourteen (14) days of receipt of this R&R may constitute a waiver of further appeal. 28 U.S.C. §
636(b)(1); Thomas v. Arn, 474 U.S. 140, 155 (1985).
ENTERED this 20th day of July, 2018.

/s/
Joe B. Brown
JOE B. BROWN
United States Magistrate Judge

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