Richardson v. Astrue
Filing
54
MEMORANDUM DECISION granting in part and denying in part 47 Motion for Attorney Fees. Signed by Magistrate Judge Brooke C. Wells on 03/14/2012. (asp)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
THOMAS J. RICHARDSON,
ORDER AWARDING FEES PURSUANT TO
THE EQUAL ACCESS TO JUSTICE ACT
Plaintiff,
v.
Case No. 2:09-CV-851 BCW
MICHAEL J. ASTRUE,
Defendant.
Magistrate Judge Brooke Wells
Before the Court is Plaintiff ‘s Motion for Attorney Fees Pursuant to the Equal Access to
Justice Act. 1 Plaintiff asserts the Government’s position in this case was not substantially
justified so he is entitled to attorney fees under the Equal Access to Justice Act (EAJA). 2
Plaintiff initially requests attorneys fees in the amount of $15,871.56 for 82.75 hours in attorney
time at the rate of $178.75 per hour, and 12 hours in paralegal time at the rate of $90 per hour.
Defendant does not argue that Plaintiff’s counsel’s hourly rate is improper or that a fee
under the EAJA is not substantially justified. Rather, Defendant asserts that the Court should
reduce any EAJA award by $2,644.56 for a total of $13,277.00. Defendant argues this reduction
is appropriate because Plaintiff’s request is excessive or otherwise unreasonable. As noted by
Defendant, a court may exclude hours “that are excessive, redundant, or otherwise
unnecessary.” 3 Defendant further argues that Plaintiff’s requests for block billing tasks
performed by a paralegal are inappropriate.
1
Docket no. 47.
2
See 28 U.S.C.A. § 2412.
3
Hensley v. Eckerhart, 461 U.S. 424, 434 (1982) (citing Copeland v. Marshall, 641 F.2d 880, 891 (1980)).
Under the EAJA, a party prevailing against the United States may be awarded fees
payable by the United States if the Government’s position in the litigation was not substantially
justified. 4 “EAJA fees are determined not by a percent of the amount recovered, but by the ‘time
expended’ and the attorney's ‘[hourly] rate.’” 5 The party making the request bears the burden to
prove that their fee request is reasonable and to provide adequate documentation of the fee
request. 6
When reviewing the hours reported for tasks this Court evaluates the hours spent on each
task to see if they are reasonable.
In determining what is a reasonable time in which to perform a given task or to
prosecute the litigation as a whole, the court should consider that what is
reasonable in a particular case can depend upon factors such as the complexity of
the case, the number of reasonable strategies pursued, and the responses
necessitated by the maneuvering of the other side. 7
Here, Defendant takes issue with the following tasks claiming they are excessive: 1) 19.3
hours of attorney time for preparing a reply brief before the Tenth Circuit arguing it should be
reduced by 6.3 hours to 12 hours; 2) six hours spent preparing the instant motion for attorney
fees under the EAJA arguing it should be reduced by half to three hours; 3) 1.5 hours of attorney
time spent in preparing the complaint in this case arguing it should be reduced to .5 hours; 4) 2
hours spent in consultation with a second attorney regarding the appeal taken to the Tenth Circuit
in this case; 5) 2.35 hours of attorney time and .65 hours of paralegal time related to attempting
to appear for oral argument before this Court; 8 and finally, 6) requests for fees spent by a
4
28 U.S.C. § 2412 (d)(1)(A) (quoting 28 U.S.C. § 2412(d)(1)(B).
5
Gisbrecht v. Barnhart, 535 U.S. 789, 796 (2002) (quoting 28 U.S.C. § 2412(d)(1)(B).
6
Eckerhart, 461 U.S. at 437.
7
Ramos v. Lamm, 713 F.2d 545, 554 (10th Cir. 1983).
8
Plaintiff’s attorney first attempted to appear telephonically, which did not work. Afterward she attempted to travel
to argument but the flight was cancelled. But, no argument was held.
2
paralegal via block billing specifically, “block billed or clerical tasks 1.50 hours on September
23, 2009; 1.25 hours on December 15, 2009; 0.40 hours on February 4, 2010; and 0.25 hours on
May 24, 2011.” 9
In summation, Defendant argues attorney time should be reduced by 14.65 hours and
paralegal time should be reduced by 4.05 hours. 10
In response to Defendant’s arguments Plaintiff reduces “his fee request by 2.65 hours for
paralegal time ($238.50) and 2.0 attorney hours for time spent drafting the Motion and
memorandum for EAJA fees, but has increased the request by 2.0 attorney hours for time spent
preparing this Reply.” Taking into account these reductions, Plaintiff’s new request is in the
amount of $15,633.06.
Plaintiff also argues the hours submitted are justified because: 1) the Reply brief on
appeal was 20 pages long and the Government’s brief necessitated additional responses in the
reply brief; 2) the time spent drafting the instant motion was actually longer than six hours and in
any event, the request has now been reduced by 2.0 attorney hours; 3) the complaint in this
matter was not “boiler plate” and required the assertion of five separate issues; 4) consultation
with an attorney more experienced in appeals was necessary because counsel for Plaintiff lacks
experience in this area; 5) counsel spent time preparing for oral argument and through no fault of
counsel, oral argument was canceled and rescheduled. In addition, counsel had no control over
the flight being cancelled the second time oral argument was scheduled; and 6) while Plaintiff
agrees that block billing entries are inappropriate under the EAJA the requests here were
legitimate and did not include secretarial or clerical tasks.
9
Op. p. 5.
10
Based upon the calculations and representations in Plaintiff’s memoranda, the hourly rate charged for the
paralegal is $90 per hour.
3
After reviewing Plaintiff’s submitted requests, arguments of counsel and relevant case
law the Court finds as follows. The Court agrees the time for the following tasks should be
reduced because they are excessive: the time spent in preparing the reply brief on appeal, the
time spent in preparing the instant motion, the time spent preparing for oral argument that did not
occur and a partial reduction for clerical tasks by the paralegal. The Court finds these reductions
appropriate based upon the experience of counsel and the failure of Plaintiff in meeting the
burden to establish the reasonableness of the requested fees. 11 Thus, the Court reduces attorney
time by 10 hours and paralegal time by an additional hour. The Court finds the hours charged
for preparing the complaint and for consulting with another attorney regarding an appeal
reasonable.
ORDER
For the reasons set forth above, the Plaintiff’s motion is GRANTED in PART. The Court
reduces Plaintiff’s revised request by $1430 in attorneys fees and $90 in paralegal fees. 12 The
Court awards fees pursuant to the EAJA in the amount $14,113.06 payable to Plaintiff, Thomas
Richardson, and mailed to counsel of record.
DATED this 14 March 2012.
Brooke C. Wells
United States Magistrate Judge
11
See Eckerhart, 461 U.S. at 437; Grendel’s Den v. Larkin, 749 F.2d 945 953-54 (1st Cir. 1984);
12
This reduction takes into account Plaintiff’s reduction of 2.0 attorney hours.
4
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