Brooks v. Colvin

Filing 34

ORDER re 30 MOTION for Attorney Fees For EAJA Fees and Expenses filed by Charles S. Brooks by Judge David W. Christel. (KEB)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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CHARLES S. BROOKS,

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Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,

CASE NO. 3:15-CV-05207-DWC
ORDER ON PLAINTIFF’S MOTION
FOR ATTORNEY’S FEES AND
EXPENSES PURSUANT TO 28 U.S.C.
§ 2412

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Defendant.
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Plaintiff Charles S. Brooks filed a Motion for Attorney’s Fees and Expenses Pursuant to

17 28 U.S.C. § 2412, seeking $10,465.88 in attorney’s fees, paralegal expenses, and other expenses
18 pursuant to the Equal Access to Justice Act (“EAJA”). Dkt. 30. Defendant argues Plaintiff’s
19 attorney’s fees should be reduced to $6,500.00, as Plaintiff’s requested fees are excessive and
20 unreasonable, and Plaintiff achieved limited success in the case. Dkt. 31.
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The Court concludes Plaintiff achieved a fully favorable result in the underlying

22 litigation. However, Plaintiff’s proposed fees are unreasonable, as the hours Plaintiff’s attorneys
23 billed on this case were excessive. Accordingly, Plaintiff’s motion is granted in part.
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ORDER ON PLAINTIFF’S MOTION FOR
ATTORNEY’S FEES AND EXPENSES
PURSUANT TO 28 U.S.C. § 2412 - 1

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BACKGROUND AND PROCEDURAL HISTORY
On March 31, 2015, the Court found the ALJ erred by failing to properly discount the

3 opinions of two other medical sources, Jessica Webb, P-ARNP, and Ryan Lehotay, MA, LMHC.
4 Dkt. 27, at pp. 3-7. The Court reversed the ALJ’s decision and remanded the case to the Social
5 Security Administration (“Administration”) for further proceedings pursuant to sentence four of
6 42 U.S.C. § 405(g). Id.
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On June 30, 2016, Plaintiff filed this Motion. Dkt. 30. Defendant filed a Response (Dkt.

8 31), and on July 15, 2016, Plaintiff filed a Reply. Dkt. 32.
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DISCUSSION

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In any action brought by or against the United States, the EAJA states “a court shall

11 award to a prevailing party other than the United States fees and other expenses . . . unless the
12 court finds that the position of the United States was substantially justified or that special
13 circumstances make an award unjust.” 28 U.S.C. § 2412(d)(1)(A). According to the United
14 States Supreme Court, “the fee applicant bears the burden of establishing entitlement to an award
15 and documenting the appropriate hours expended.” Hensley v. Eckerhart, 461 U.S. 424, 437
16 (1983). The government has the burden of proving its positions overall were substantially
17 justified. Hardisty v. Astrue, 592 F.3d 1072, 1076 n.2 (9th Cir. 2010) (citing Flores v. Shalala,
18 49 F.3d 562, 569-70 (9th Cir. 1995)). Further, if the government disputes the reasonableness of
19 the fee, it also “has a burden of rebuttal that requires submission of evidence to the district court
20 challenging the accuracy and reasonableness of the hours charged or the facts asserted by the
21 prevailing party in its submitted affidavits.” Gates v. Deukmejian, 987 F.2d 1392, 1397-98 (9th
22 Cir. 1992) (citations omitted). The Court has an independent duty to review the submitted
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ORDER ON PLAINTIFF’S MOTION FOR
ATTORNEY’S FEES AND EXPENSES
PURSUANT TO 28 U.S.C. § 2412 - 2

1 itemized log of hours to determine the reasonableness of hours requested in each case. See
2 Hensley, 461 U.S. at 433, 436-37.
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Once the Court determines a plaintiff is entitled to a reasonable fee, “the amount of the

4 fee, of course, must be determined on the facts of each case.” Hensley, 461 U.S. at 429, 433, n.7.
5 “[T]he most useful starting point for determining the amount of a reasonable fee is the number of
6 hours reasonably expended on the litigation multiplied by a reasonable hourly rate,” which
7 encompasses the lodestar method. Id. at 433, 435.
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Here, Defendant does not argue the position of the government was substantially

9 justified. Instead, Defendant argues Plaintiff’s proposed fee award should be reduced by
10 approximately one-third because: 1) Plaintiff obtained limited success on appeal; and 2) the
11 hours Plaintiff’s attorneys spent prosecuting his case were excessive and unreasonable.
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1. Limited Success on Appeal

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Defendant argues Plaintiff should receive no more than $6,500.00 in attorney’s fees and

14 expenses because Plaintiff had limited success on appeal. Dkt. 31, pp. 6-8. Specifically,
15 Defendant contends the Court found the ALJ erred on only one of the issues Plaintiff raised in
16 his Opening Brief, and Plaintiff only obtained a remand for further proceedings, rather than a
17 remand for the immediate calculation of benefits. Id. The Court disagrees.
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First, when a case involves a “common core of facts or will be based on related legal

19 theories . . . the district court should focus on the significance of the overall relief obtained by the
20 plaintiff in relation to the hours reasonably expended on the litigation.” See Hensley, 461 U.S. at
21 435. Where a plaintiff “has obtained excellent results, his attorney should recover a fully
22 compensatory fee.” Id.
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ORDER ON PLAINTIFF’S MOTION FOR
ATTORNEY’S FEES AND EXPENSES
PURSUANT TO 28 U.S.C. § 2412 - 3

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Plaintiff raised several assignments of error as part of this claim: the ALJ’s evaluation of

2 Plaintiff’s testimony; the ALJ’s evaluation of the medical opinion evidence; the ALJ’s evaluation
3 of the other medical source opinion evidence; the ALJ’s finding Plaintiff did not meet the
4 requirements of a listing; the ALJ’s determination Plaintiff could perform work existing in
5 significant numbers in the national economy; and the Administration’s determination that
6 medical evidence submitted for the first time to the Appeals Council did not relate to the period
7 at issue in this case. The Court found the ALJ erred by failing to properly consider the opinions
8 of Ms. Webb and Mr. Lehotay, two other medical sources. Though the Court found the ALJ’s
9 analysis of Plaintiff’s testimony was supported by substantial evidence, 1 and otherwise declined
10 to address Plaintiff’s remaining arguments, the Court reviews only the “issues that led to
11 remand” in determining if an award of fees is appropriate. See Toebler, 749 F.3d at 834.
12 “Litigants in good faith may raise alternative legal grounds for a desired outcome, and the court’s
13 rejection of or failure to reach certain grounds is not a sufficient reason for reducing a fee. The
14 result is what matters.” See Hensley, 461 U.S. at 435. Here, Plaintiff prevailed on his claim that
15 the ALJ’s denial of his social security application was legally erroneous and not based on
16 substantial evidence in the record as a whole. Under Hensley, this degree of success is properly
17 considered an “excellent result.” See Hensley, 461 U.S. at 435.
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Second, though Plaintiff requested a remand for the immediate calculation of benefits,

19 Plaintiff also requested a remand for further proceedings as an alternative remedy. Notably,
20 remands for the immediate calculation and payment of benefits are uncommon in social security
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Even though the Court found the ALJ’s analysis of Plaintiff’s testimony was supported
by substantial evidence, the Court also observed an evaluation of a claimant’s testimony
23 depends, in part, on an analysis of the objective medical evidence. See 20 C.F.R. §§ 404.1529(c),
416.929(c). Thus, the Court noted the ALJ’s errors in evaluating the opinions of Mr. Lehotay and
24 Ms. Webb warranted the ALJ re-evaluating Plaintiff’s testimony on remand.
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ORDER ON PLAINTIFF’S MOTION FOR
ATTORNEY’S FEES AND EXPENSES
PURSUANT TO 28 U.S.C. § 2412 - 4

1 appeals in this Court, as compared to remands for further administrative proceedings. Cf.
2 Treichler v. Commissioner of Soc. Sec. Admin., 775 F.3d 1090, 1100-02 (9th Cir. 2014)
3 (discussing the “ordinary remand” rule). Plaintiff demonstrated the ALJ erred, and obtained a
4 remand for further proceedings to correct the error. Despite the fact Plaintiff did not obtain the
5 extraordinary remedy of a remand for the immediate calculation and payment of benefits, the
6 relief Plaintiff received is an “excellent result[],” one which weighs in favor of a fully
7 compensatory fee for Plaintiff’s attorney. See Hensley, 461 U.S. at 435.
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Plaintiff was successful on appeal and received the requested relief, reversal and remand

9 of the ALJ’s decision. Plaintiff is entitled to reasonable attorney’s fees, and the EAJA award
10 should not be reduced simply because the Court did not make findings in Plaintiff’s favor as to
11 each issue raised on appeal.
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2. Unreasonable and Excessive Hours Billed

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Defendant also argues the number of hours Plaintiff’s attorneys expended in the

14 prosecution of his case were unreasonable and excessive. 2 Specifically, Defendant argues the
15 procedural posture, issues of fact, and issues of law presented in this case were routine, and the
16 amount of time expended by Plaintiff’s attorneys was far in excess of the average fee awards in
17 similar cases. Dkt. 31, p.4-6. See Hensley, 461 U.S. at 429-30, n.3; Johnson v. Georgia Highway
18 Exp., Inc., 488 F.2d 714, 717-19 (5th Cir. 1974). The Court agrees in part.
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Defendant does not challenge Plaintiff’s proposed hourly rate of $190.28. The Court
has considered this hourly rate and finds it to be consistent with the EAJA and the Ninth
22 Circuit’s cost of living adjustment. See Statutory Maximum Rates Under the Equal Access to
Justice Act, available at http://www.ca9.uscourts.gov/content/view.php?pk_id=0000000039 (last
23 visited July 25, 2016). Further, though Defendant challenges the overall fee award, Defendant
does not argue Plaintiff’s request for $330.00 in paralegal fees and $12.98 in expenses is
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ORDER ON PLAINTIFF’S MOTION FOR
ATTORNEY’S FEES AND EXPENSES
PURSUANT TO 28 U.S.C. § 2412 - 5

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Assessing whether an attorney has spent a reasonable amount of time on a case “will

2 always depend on case-specific factors including, among others, the complexity of the legal
3 issues, the procedural history, the size of the record, and when counsel was retained.” Costa, 690
4 F.3d at 1136. While a court may not adopt de facto policy of restricting EAJA awards in social
5 security cases to forty hours or less, courts may consider EAJA awards in other cases as one of
6 many factors in evaluating the reasonableness of a fee request, provided they explain why the
7 amount of time requested for a particular task is too high. Id. 3
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As a threshold matter, the Court ordered supplemental briefing in this case to address

9 whether additional evidence submitted to, but not considered by, the Appeals Council, warranted
10 remand under Sentence Six of 42 U.S.C. § 405(g). 4 Dkt. 24. Plaintiff’s attorneys spent 10.7
11 hours reviewing the order directing the parties to prepare supplemental briefs, researching the
12 legal question presented by the Court, and drafting, editing, and filing Plaintiff’s supplemental
13 brief. Dkt. 30, Exh. 3, p. 2. Because the vast majority of social security appeals decided by this
14 Court do not require the additional time and expense of supplemental briefs, the Court is mindful
15 that the overall fee awards in other cases are not ideally suited for comparison.
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Relevant factors which may be considered are identified in Johnson v. Georgia Highway
Exp., Inc., 488 F.2d 714 (5th Cir. 1974), as: (1) The time and labor involved; (2) the novelty and
difficulty of the questions involved; (3) the skill requisite to perform the legal service properly;
(4) the preclusion of other employment by the attorney due to acceptance of the case; (5) the
customary fee; (6) whether the fee is fixed 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 attorneys; (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 717-19 (citations omitted); Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 70 (9th
Cir. 1975) (adopting Johnson factors).
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Neither Plaintiff nor the Commissioner addressed the Sentence Six implications
presented by this evidence in their opening, responsive, and reply briefing, even though the
evidence at issue was a medical opinion post-dating the ALJ’s decision, which the Appeals
Council found did not relate back to the period at issue and thus did not include in the
administrative record.
ORDER ON PLAINTIFF’S MOTION FOR
ATTORNEY’S FEES AND EXPENSES
PURSUANT TO 28 U.S.C. § 2412 - 6

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Nonetheless, the majority of issues raised by Plaintiff in his opening brief—such as

2 alleged errors in the ALJ’s evaluation of the medical opinion evidence, and alleged errors in the
3 ALJ’s evaluation of Plaintiff’s testimony—are issues routinely encountered in social security
4 disability cases and should require less time for an experienced attorney to effectively research
5 and litigate. The 604 page administrative record in this case, moreover, is not unusually large.
6 Indeed, it may very well be on the smaller end of the range in social security appeals. See, e.g.,
7 Fisher v. Colvin, Case No. 2:15-CV-716-DWC (W.D. Wash.) (transcript of 1,434 pages, 7 hours
8 to review and draft opening brief); Justice v. Colvin, Case No. 3:14-CV-6001-DWC (W.D.
9 Wash.) (20.5 hours for reviewing and drafting opening brief); Givens v. Colvin, Case No. 3:1510 CV-5199-DWC (W.D. Wash.) (transcript of 920 pages, 26.9 hours to prepare an opening brief);
11 Spencer v. Colvin, Case No. 2:15-CV-20-JRC (W.D. Wash.) (transcript of 983 pages, fee petition
12 requested 15.7 hours for file review and drafting opening brief).

Though “social security

13 disability cases are often highly fact-intensive and require careful review of the administrative
14 record,” the issues presented in Plaintiff’s opening brief were not so extraordinary as to justify
15 one of the highest proposed fee awards the Court has seen. Costa v. Comm’r of Soc. Sec. Admin.,
16 690 F.3d 1132, 1134, n. 1 (9th Cir. 2012).
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Further, the amount of time Plaintiff’s attorneys expended on his opening brief

18 appreciably exceeds the amount of time expended on most opening briefs for social security
19 appeals in this District. For example, in a recent decision of this Court, the Court discussed
20 nineteen EAJA fee awards in social security cases. See Stearns v. Colvin, 226 Soc.Sec.Rep.Serv.
21 7, at *6 (W.D. Wash., Feb. 24, 2016) (collecting cases). Attorneys for the claimants in those
22 cases billed, on average, 16.84 hours for a review of the file and completion of the opening brief,
23 within a range of 7.6 hours to 25.4 hours. Id. Here, by contrast, Plaintiff’s attorneys billed 32.4
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ORDER ON PLAINTIFF’S MOTION FOR
ATTORNEY’S FEES AND EXPENSES
PURSUANT TO 28 U.S.C. § 2412 - 7

1 hours alone for the file review and opening brief. Not only is this amount approximately twice
2 the average time spent on the opening briefs discussed in Stearns, it is higher than the total
3 amount billed in many social security cases. See Stearns v. Colvin, 226 Soc.Sec.Rep.Serv. 7, at
4 *6. See also, e.g., Ladwig v. Colvin, 2:15-cv-774, Dkt. 19 (13.8 hours); Huerta v. Colvin, 2:155 cv-1114, Dkt. 18 (23.10 hours), Kassa v. Colvin, 2:15-cv-513, Dkt. 27 (27.05 hours);
6 Amirkhanov v. Colvin, 2:15-cv-1541, Dkt. 27 (30.4 hours); Justice v. Colvin, 3:14-cv-6001, Dkt.
7 25 (32.2 hours).
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Because the issues raised in Plaintiff’s opening brief were neither novel nor unusually

9 complex, and because the 32.4 hours expended by Plaintiff’s attorneys in drafting the opening
10 brief were far in excess of opening briefs in other, similarly situated cases, the Court concludes a
11 reasonable amount of time for Plaintiff’s opening brief should have been no more than 22 hours.
12 This represents a -10.4 hour adjustment to the time billed by Plaintiff’s attorneys on the opening
13 brief.
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The Court notes Plaintiff’s attorneys’ have implicitly conceded the hours billed on the

15 case were excessive, and have already included a -5.6 hour downward adjustment on their billing
16 statement. See Dkt. 30, Exh. 3, p. 2. In light of this voluntary fee reduction, the Court need only
17 impose an additional adjustment of -4.8 hours to achieve the requisite -10.4 hour reduction.
18 Thus, based on the facts of this case, and taking into account the additional time Plaintiff’s
19 attorneys expended on preparing a reply brief and supplemental briefing, the Court concludes a
20 total of 45.9 hours for attorney time is reasonable. Further, Plaintiff’s request for an additional
21 2.5 hours of attorney’s fees in defense of the fee petition is reasonable, and should be added to
22 the award, for a total of 48.4 hours. See Commissioner, I.N.S. v. Jean, 496 U.S. 154, 157 (1990)
23 (fees for time and expenses incurred in applying for fees were covered in EAJA cases).
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ORDER ON PLAINTIFF’S MOTION FOR
ATTORNEY’S FEES AND EXPENSES
PURSUANT TO 28 U.S.C. § 2412 - 8

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CONCLUSION
For the foregoing reasons, and based on the Equal Access to Justice Act, 28 U.S.C. §

3 2412, (“EAJA”), Plaintiff’s Motion (Dkt. 30), the first and second declarations of Eitan Kassel
4 Yanich (Dkt. 30, Exh. 2; Dkt. 32, Exh. 1), attorney time and expense itemizations (Dkt. 30, Exh.
5 3), Plaintiff’s declaration of net worth and assignment of an EAJA fee award (Dkt. 29), and the
6 relevant record, the Court orders EAJA attorney’s fees of $9,209.55, paralegal fees of $330.00,
7 and expenses of $12.98, for a total of $9,552.53, be awarded to Plaintiff pursuant to EAJA and
8 consistent with Astrue v. Ratliff, 130 S.Ct. 2521, 2524 (2010) (“EAJA Award”).
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The Acting Commissioner agrees to contact the Department of Treasury after this Order

10 is entered to determine if the EAJA Award is subject to any offset. If the U.S. Department of the
11 Treasury verifies to the Office of General Counsel that Plaintiff does not owe a debt, the
12 government will honor Plaintiff’s assignment of EAJA Award and pay the EAJA Award directly
13 to the Law Office of Eitan Kassel Yanich, PLLC. If there is an offset, any remainder shall be
14 made payable to Plaintiff, based on the Department of the Treasury’s Offset Program and
15 standard practices, and the check shall be mailed to Plaintiff’s counsel, Eitan Yanich, at the Law
16 Office of Eitan Kassel Yanich, PLLC, 203 Fourth Ave. E., Ste. 321, Olympia, WA 98501.
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Dated this 28th day of July, 2016.

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David W. Christel
United States Magistrate Judge

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ORDER ON PLAINTIFF’S MOTION FOR
ATTORNEY’S FEES AND EXPENSES
PURSUANT TO 28 U.S.C. § 2412 - 9