Naylor v. Kijakazi

Filing 28

MEMORANDUM DECISION AND ORDER granting 24 Motion for Attorney Fees. Signed by Magistrate Judge Daphne A. Oberg on 06/05/2024. (haa)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION

TREVOR N.,
Plaintiff,
v.
MARTIN O’MALLEY, Commissioner
of Social Security Administration,
Defendant.

MEMORANDUM DECISION AND
ORDER GRANTING MOTION FOR
ATTORNEY’S FEES UNDER THE
EQUAL ACCESS TO JUSTICE ACT
(DOC. NO. 24)
Case No. 2:23-cv-00238
Magistrate Judge Daphne A. Oberg

In this closed Social Security case, Trevor N. 1 has filed a motion under the Equal
Access to Justice Act 2 (“EAJA”), seeking an award of $8,452.25 in attorney fees. 3 While
the Commissioner does not object to an award of fees, he argues the amount of fees
sought is excessive and should be reduced. 4 Because the fee request is reasonable,
and Mr. N. is entitled to additional fees for time spent defending his fee motion, Mr. N. is
awarded $9,565.18 in attorney fees. 5

Pursuant to best practices in the District of Utah addressing privacy concerns in
certain cases, including social security cases, the plaintiff is referred to by his first name
and last initial only.

1

2

28 U.S.C. § 2412(d).

3

(Mot. for Att’y’s Fees Pursuant to the Equal Access to Just. Act (“Mot.”), Doc. No. 24.)

4

(Def.’s Resp. to Pl.’s Mot for Att’y Fees Pursuant to the EAJA (“Opp’n”), Doc. No. 26.)

In addition to the $8,452.25 originally sought, Mr. N. seeks $1,112.93 for time spent
drafting a reply brief in support of his motion for fees, for a total of $9,565.18. (Pl.’s
Reply (“Reply”) 6, Doc. No. 27.)

5

BACKGROUND
Mr. N. brought this action for judicial review of the Commissioner’s denial of his
applications for disability insurance benefits and supplemental security income. 6 Mr. N.
argued the Administrative Law Judge’s decision was not based on substantial evidence,
because the judge failed to properly evaluate Mr. N.’s subjective complaints and the
opinion of Mr. N.’s treating physician. 7 Before the responsive brief was due, the
Commissioner filed an unopposed motion to remand the case, noting the agency
“determined that remand for a new administrative hearing is warranted.”8 The court
granted the motion to remand and closed the case. 9 Shortly thereafter, Mr. N. filed his
motion for attorney fees under the EAJA, 10 which the Commissioner challenges as
unreasonable. 11
ANALYSIS
Under the EAJA, a party who prevails in a lawsuit against a federal agency is
entitled to “reasonable fees and expenses.” 12 The party seeking attorney fees bears the

6

(See Opening Br., Doc. No. 15.)

7

(See id. at 12–25.)

(Def.’s Unopposed Mot. to Remand Pursuant to Sentence Four of 42 U.S.C. § 405(g),
Doc. No. 21.)

8

(See Order Granting Def.’s Unopposed Mot. to Remand Pursuant to Sentence Four of
42 U.S.C. § 405(g), Doc. No. 22; J. in a Civ. Case, Doc. No. 23.)

9

10

(Mot., Doc. No. 24.)

11

(Opp’n 1, Doc. No. 26.)

12

28 U.S.C. § 2412(b).
2

burden of establishing the reasonableness of the fees sought. 13 The Commissioner
argues Mr. N. has failed to meet this burden of showing reasonableness, and
specifically objects to a number of time entries on Mr. N.’s fee ledger. Each objection is
addressed below.
I.

The time counsel spent drafting the opening brief is reasonable.
The Commissioner first argues the twenty-six hours attributed to drafting the

opening brief should be reduced to no more than twenty hours. 14 The Commissioner
contends the average fully-briefed social security case requires twenty to forty hours of
billed time, whereas this case only required one brief. 15 The Commissioner also points
out Mr. N.’s claim is a routine issue commonly litigated in social security cases. 16
The Commissioner’s argument fails. First, the Commissioner ignores the fact
that the opening brief accounts for most of the time spent on a social security appeal, as
it involves reviewing the administrative record (1,637 pages, in this case) and
developing arguments. Indeed, a reply brief—the only additional brief a petitioner would
typically write—must be limited to the arguments made in the opening and responsive
briefs. 17 Additionally, district courts routinely find it reasonable to spend around one

13

Mares v. Credit Bureau of Raton, 801 F.2d 1197, 1210 (10th Cir. 1986).

14

(Opp’n 3–4, Doc. No. 26.)

(Id. at 4 (citing Manzanares v. Colvin, No. 15-cv-02794, 2016 U.S. Dist. LEXIS
156605, at *8 (D. Colo. Nov. 10, 2016) (unpublished)).)

15

16

(Id. at 3–4.)

See DUCivR 7-4(c)(1)(B)(vi). Moreover, petitioners often elect not to submit reply
briefs, meaning even “fully briefed” cases may only have one brief from the petitioner,
as in this case.

17

3

hour per page drafting a social security brief. 18 Here, counsel spent 26.7 hours
reviewing the record and drafting the twenty-six page opening brief, which is a
reasonable amount of time.
II.

The time counsel spent reviewing short orders is reasonable.
The Commissioner next argues it was unreasonable for Mr. N.’s counsel to bill

0.5 hours total for reviewing two notices of appearance, two orders granting extensions,
and an order granting remand. 19 The Commissioner argues these fees should be
stricken because these documents were short and did not require a response. 20 In
support of this argument, the Commissioner cites See v. Colvin, 21 a district court case
out of the Ninth Circuit, where the court reduced “case management” fees to 3.5 hours
over the course of the entire case. 22 The court concluded that billing in 0.1-hour
increments for “minimalistic tasks, . . . when taken together[,] has a multiplier effect and
saddles the Commissioner with hundreds of dollars of unjustified fee payments.”23

See, e.g., Farmer v. Astrue, No. 09-2505, 2010 U.S. Dist. LEXIS 124778, at *9 (D.
Kan. Nov. 23, 2010) (unpublished) (“1.1 hours per page in general would not be an
unreasonable time to spend writing a Social Security Brief.”); Booker v. Berryhill, No.
3:16-CV-00299, 2017 U.S. Dist. LEXIS 128421, at *4 (W.D.N.C. Aug. 14, 2017)
(unpublished) (finding one hour of drafting time per page to be reasonable).
18

(Opp’n 4, Doc. No. 26.) Mr. N.’s counsel billed 0.1 hour for each of these activities,
for a total of 0.5 hours. (See Ex. B to Mot., Ledger, Doc. No. 24-2.)

19

20

(Opp’n 4, Doc. No. 26.)

No. 1:09-cv-1751, 2014 U.S. Dist. LEXIS 74302 (E.D. Cal. May 30, 2014)
(unpublished).

21

22

Id. at *21.

23

Id. at *20.
4

The Commissioner’s reliance on See is unfounded. The See court reduced the
fee award because a “large portion” of the entries on counsel’s timesheet consisted of
minimalistic tasks. 24 By contrast, here, counsel only billed for a few simple tasks,
leaving a significant number on the ledger as 0-hour entries—in other words, counsel
only billed 0.5 hours for well over fifteen of these entries. 25 See supports Mr. N.’s
position in that the court awarded 3.5 hours of time for the same type of tasks over the
course of a case. Additionally, courts in this circuit have awarded 0.1 hours in fees for
“check-off” tasks such as reviewing entries of appearance. 26 It is reasonable to bill a
total of 0.5 hours for more than fifteen independent, short tasks.
III.

Paralegal time spent preparing a transcript is compensable.
Finally, the Commissioner argues the court should strike the 1.4 hours of

paralegal time claimed to “combine, OCR, and live bookmark Federal court transcript.”27
The Commissioner argues “[p]urely clerical or secretarial tasks should not be billed at a
paralegal rate, regardless of who performs them.”28 But paralegal time spent preparing
a transcript for an attorney is not a “purely clerical” task—courts regularly allow

24

Id. at *19.

25

(See Ex. B to Mot., Ledger, Doc. No. 24-2.)

See Gossett v. Berryhill, No. 15-CV-655, 2017 U.S. Dist. LEXIS 100762, at *6 (N.D.
Okla. June 29, 2017) (unpublished) (citing See, 2014 U.S. Dist. LEXIS 74302, at *19 in
support of award of 0.1 hours of fees per entry for “check-off” tasks, such as reviewing
entries of appearance).
26

27

(Opp’n 5, Doc. No. 26.)

28

(Id. (quoting Missouri v. Jenkins, 491 U.S. 274, 288 n.10 (1989)).)
5

compensation for such paralegal work. 29 It is reasonable to bill 1.4 hours of paralegal
time for transcript preparation.
CONCLUSION
Because the amount of fees sought is reasonable, Mr. N.’s motion for attorney
fees30 is granted. Mr. N. is awarded $9,565.18 31 in attorney fees pursuant to the EAJA.
Payment of this amount shall constitute a complete release from and bar to any and all
claims Mr. N. may have relating to EAJA fees in connection with this action. The EAJA
fees are awarded without prejudice to Mr. N.’s attorney’s right to seek attorney fees
pursuant to section 206(b) of the Social Security Act, 32 subject to the offset provisions of
the EAJA. 33

See, e.g., Michelle G. v. Kijakazi, No. 4:20-CV-00640, 2022 U.S. Dist. LEXIS 3362, at
*7 (S.D. Tex. Jan. 6, 2022) (unpublished) (collecting cases where courts found
paralegal time preparing transcripts compensable, because “[p]reparing a transcript for
ready legal analysis requires some legal knowledge and training, and compensating
such work furthers judicial economy by reimbursing paralegal work that cuts down on
attorney's fees”); Sykes v. Comm'r, SSA, No. 16-898, 2017 U.S. Dist. LEXIS 71072, at
*3–4 (D. Md. May 10, 2017) (unpublished) (permitting plaintiff to claim paralegal time for
“OCR & Live bookmark federal court transcript”); Valerie S. v. Comm’r, No. 4:21-CV005, 2022 U.S. Dist. LEXIS 203239, at *5 (N.D. Ga. Sep. 7, 2022) (unpublished)
(same).
29

30

(Doc. No. 24.)

Mr. N. originally sought $8,452.25 in attorney fees, but he now seeks an additional
$1,112.93 for time spent drafting a reply brief in support of his motion for fees—for a
total of $9,565.18. (Reply 6, Doc. No. 27.) This amount is reasonable, and time spent
defending a motion for EAJA fees is compensable. Comm’r v. Jean, 496 U.S. 154, 166
(1990). Accordingly, Mr. N. is entitled to a total of $9,565.18.
31

32

42 U.S.C. § 406(b).

33

See 28 U.S.C. § 2412(c)(1).
6

Under Astrue v. Ratliff, 34 an EAJA fee award belongs to the plaintiff, and is
subject to offset under the Treasury Offset Program. 35 Thus, the EAJA fees must be
paid to Mr. N. However, if, upon effectuation of this EAJA fee order, the Commissioner
(1) determines Mr. N. does not owe a debt subject to offset under the Treasury Offset
Program, and (2) agrees to waive the requirements of the Anti-Assignment Act, 36 the
fees will be payable to Mr. N.’s attorney. If Mr. N. owes a debt under the Treasury
Offset Program, the Commissioner cannot agree to waive the requirements of the AntiAssignment Act. In such case, the EAJA fees remaining after offset will be paid by a
check made out to Mr. N. but delivered to Mr. N.’s attorney.
If Mr. N.’s counsel ultimately receives an award of attorney fees pursuant to 42
U.S.C. § 406(b), counsel must refund the smaller award to Mr. N. pursuant to Weakley
v. Bowen. 37
DATED this 5th day of June, 2024.
BY THE COURT:
______________________________
Daphne A. Oberg
United States Magistrate Judge

34

560 U.S. 586, 595–98 (2010).

35

See 31 U.S.C. § 3716(c)(3).

36

31 U.S.C. § 3727.

37

803 F.2d 575, 580 (10th Cir. 1986).
7