Zulfiqar v. Colvin

Filing 22

ORDER granting in part and denying in part plaintiff's 18 Motion for Attorney Fees by Judge Richard A Jones.(RS)

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1 2 3 4 5 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 6 7 TAHIR ZULFIQAR, 8 Plaintiff, 9 Case No. C16-526-RAJ ORDER ON MOTION FOR EQUAL ACCESS TO JUSTICE ACT FEES v. 10 NANCY A. BERRYHILL, Acting 1 11 Commissioner of Social Security, Defendant. 12 Plaintiff, Tahir Zulfiqar, appealed the denial of his application for Disability Insurance 13 14 Benefits (DIB). Dkt. 2. On September 29, 2016, the Court issued a Report and 15 Recommendation (R&R) recommending remand of this matter for further proceedings. Dkt. 15. 16 By order dated November 28, 2016, this court adopted the R&R and reversed and remanded the 17 matter for further administrative proceedings. Dkt. 16. Plaintiff now seeks an award of fees 2 18 under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412, in the amount of $9,000.32. 19 Dkts. 18, 19, 20. The Commissioner opposes the motion on the grounds that some of the fees 20 1 Nancy A. Berryhill is now the Acting Commissioner of the Social Security Administration. Pursuant to Federal Rule of Civil Procedure 25(d), Nancy A. Berryhill is substituted for Carolyn W. Colvin as defendant in this suit. The Clerk is directed to update the docket, and all future filings by the parties 22 should reflect this change. 2 Plaintiff includes an additional $20.73 in his attached timesheet but does not explain the basis for that 23 charge nor does he request that additional fee in his motion. Dkts. 18, 20-1. Accordingly, the Court is unable to properly consider the reasonableness of that additional fee and, therefore, declines to award it. 21 ORDER ON MOTION FOR EQUAL ACCESS TO JUSTICE ACT FEES 1 1 plaintiff requests are unreasonable. 3 Dkt. 21. For the reasons discussed below, the plaintiff’s 2 motion for EAJA attorney fees is GRANTED in part and DENIED in part. DISCUSSION 3 4 An EAJA fee award must be reasonable. Sorenson v. Mink, 239 F.3d 1140, 1145 (9th 5 Cir. 2001). “The most useful starting point for determining the amount of a reasonable fee is the 6 number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate.” 7 Hensley v. Eckerhart, 461 U.S. 424, 433–34, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). The Court 8 must also consider “the results obtained … when determining whether EAJA fees requested by a 9 prevailing party for an unsuccessful appeal are reasonable.” Atkins v. Apfel, 154 F.3d 986, 988 10 (9th Cir.1998). “[E]xcessive, redundant, or otherwise unnecessary” hours should be excluded 11 from a fee award, and charges that are not properly billable to a client are not properly billable to 12 the government. Hensley, 461 U.S. at 434. A prevailing plaintiff is also entitled to reasonable 13 fees for the time expended in litigating the EAJA fees request. Commissioner, INS v. Jean, 496 14 U.S. 154, 165–66, 110 S.Ct. 2316, 110 L.Ed.2d 134 (1990) (awarding EAJA fees for fee 15 litigation). A party seeking fees under the EAJA “bears the burden of establishing entitlement to 16 an award and documenting the appropriate hours expended and hourly rates.” Hensley, 461 U.S. 17 at 437. However, “the party opposing the fee application has a burden of rebuttal that requires 18 submission of evidence to the district court challenging the accuracy and reasonableness of the 19 hours charged or the facts asserted by the prevailing party in its submitted affidavits.” Gates v. 20 Deukmejian, 987 F.2d 1392, 1397-98 (9th Cir. 1992). The Commissioner challenges the reasonableness of some of the fees sought. Dkt. 21. 21 22 23 3 The Commissioner does not argue that plaintiff should be denied fees on the grounds that the Commissioner’s position was substantially justified. ORDER ON MOTION FOR EQUAL ACCESS TO JUSTICE ACT FEES 2 1 The Commissioner contends that “[p]laintiff’s itemized time sheet includes hours that were 2 excessive, redundant, or otherwise unnecessary.” Id. at 2. Specifically, the Commissioner 3 argues that billing 11.5 hours to review the administrative record, which at 563 pages was not 4 unusually lengthy, in addition to 3.5 hours to review the unfavorable decisions, Appeals Council 5 denial and to listen to hearing audio tapes from 2012 and 2014, was unreasonable. Id. The 6 Commissioner requests a reduction of 7 hours related to this billing. Id. Spending 3.5 hours to 7 review the ALJ decision for potential errors and arguments, the Appeals Council decision, and 8 listen to the recordings of two hearings lasting approximately 1 hour and 10 minutes does not, in 9 and of itself, seem unreasonable to the Court. Dkt. 20-1. However, spending an additional 11.5 10 hours purely to review the comparatively short 563 page administrative record does appear 11 excessive. Id. In particularly this request seems excessive in light of the fact that plaintiff’s 12 counsel had already listened to the hearing tapes and reviewed the ALJ’s and Appeals Council 13 decisions (which make up approximately 90 pages of the administrative record), and then 14 requested a separate and additional 25.35 hours solely to prepare the opening brief. 4 Id.; Dkt. 8 15 at 1-90. This request also appears excessive when compared to awards in similar cases. See 16 17 Hensley, 461 U.S. at 434 (“the District Court [ ] should exclude from this initial fee calculation 18 of hours that were not ‘reasonably expended’”), 430 n.3 and 434 n.9 (“the district court also may 19 consider other factors identified in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 20 717-719 (CA5 1974) ....” such as “awards in similar cases”); see, e.g., Stearns v. Colvin, 14-cv21 5611, 2016 WL 730301 at *6 (W.D. Wash., Feb. 24, 2016) (discussing nineteen EAJA awards in 22 23 4 Plaintiff refers to this time in his timesheet as preparing the Motion for Summary Judgment but appears to be referring to preparation of the opening brief. Dkt. 20-1. ORDER ON MOTION FOR EQUAL ACCESS TO JUSTICE ACT FEES 3 1 social security cases and noting a range of 7.6 hours to 25.4 hours for review of the file and 2 completion of the opening brief). The plaintiff does not offer any explanation for the large 3 amount of time spent solely in reviewing the comparatively short administrative record, nor does 4 this case appear to involve particularly complex issues that might justify expending additional 5 time on that task. See Hensley, 461 U.S. at 437 (party seeking EAJA fees “bears the burden of 6 establishing entitlement to an award and documenting the appropriate hours expended and hourly 7 rates”), 430 n.3 and 434 n.9 (in determining an award “the district court also may consider” other 8 factors including “the novelty and difficulty of the questions”); and see Stearns, 2016 WL 9 730301 at *6 (finding a reduction in fees appropriate in part because “[t]he facts, record, and 10 arguments made … in this particular case were not so unusual or complex to require … such a 11 high number of attorney hours.”). Accordingly, the Court finds a 4 hour reduction to be 12 appropriate here and allows a total of 7.5 hours for review of the administrative record. 13 The Commissioner also contends the plaintiff requested an unnecessary amount of time 14 to draft and file the complaint. Dkt. 21 at 3. The Commissioner argues that the complaint is a 15 standard document in social security cases and that plaintiff’s request of 2.75 hours to draft and 16 revise the complaint is unreasonable. Id. The Commissioner contends a 2 hour reduction would 17 be appropriate. Id. The Court agrees that this request appears excessive in light of the fact that 18 the complaint seems to be largely boilerplate with very few facts included with respect to this 19 specific case. See Dkt. 2. The plaintiff does not offer any further explanation for the large 20 amount of time spent on this apparently straight forward, routine task. Accordingly, the Court 21 finds a 1.75 hour reduction is appropriate here and allows a total of 1 hour. See, e.g., 22 VonBerckefeldt v. Astrue, 09-cv-1927, 2011 WL 274290 at *8 (E.D. Ca. July 14, 2011) (finding 23 “1.5 hours for preparation and filing of a boilerplate complaint … excessive and …[allowing] 1.0 ORDER ON MOTION FOR EQUAL ACCESS TO JUSTICE ACT FEES 4 1 hour.”) 2 Finally, the Commissioner contends the 1.45 hours plaintiff requests for reviewing the 3 scheduling order and calendaring dates in this case was excessive in light of the fact that the 4 scheduling order was only three pages long. Dkt. 21 at 3. The Commissioner requests a 1 hour 5 reduction. Id. The Court agrees that 1.45 hours to review a three page order and calendar three 6 dates is excessive. The plaintiff, again, does not offer any further explanation for the large 7 amount of time spent on this apparently short, simple task. Accordingly, the Court agrees with 8 the Commissioner that a 1 hour reduction is appropriate here and allows a total of .45 hours. 9 In sum, the Court finds a reduction of 6.75 hours to plaintiff’s requested total of 46.95 10 hours to be appropriate in this case. Accordingly, plaintiff is entitled to fees of $7,706.34 11 representing 40.2 hours of work. 12 CONCLUSION 13 For the foregoing reasons, the plaintiff’s motion for EAJA attorney fees (Dkt. 18) is 14 GRANTED in part and DENIED in part. Plaintiff is awarded attorney’s fees in the amount of 15 $7,706.34 under 28 U.S.C. § 2412(d) (EAJA). Subject to any offset allowed under the Treasury 16 Offset Program as discussed in Astrue v. Ratliff, 560 U.S. 586 (2010), payment of this award 17 shall be made to plaintiff’s attorney. Any check for EAJA fees shall be mailed to plaintiff’s 18 counsel, Matthew T. Russell, Esq., at Russell & Hill, PLLC, 3811-A Broadway, Everett, WA 19 98201. 20 21 22 23 DATED this 2nd day of May, 2017. A The Honorable Richard A. Jones United States District Judge ORDER ON MOTION FOR EQUAL ACCESS TO JUSTICE ACT FEES 5

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