Barnett v. Social Security

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 7 JEFFREY P. BARNETT, Case No. 2:21-cv-01817-NJK

8 Plaintiff(s), ORDER 9 v. [Docket No. 32] 10 KILOLO KIJAKAZI, 11 Defendant(s). 12 Pending before the Court is Plaintiff’s renewed motion for attorneys’ fees pursuant to the 13 Equal Access to Justice Act (“EAJA”). Docket No. 32. The Commissioner has not opposed the 14 motion. The motion is properly resolved without a hearing. See Local Rule 78-1. For the reasons 15 discussed more fully below, the motion is GRANTED in part and DENIED in part. 16 I. BACKGROUND 17 Plaintiff brought this suit for judicial review of the denial of social security benefits claims. 18 Docket No. 16. Prior to engaging in any substantive motion practice, the Commissioner stipulated 19 to remand the matter. Docket No. 27. Plaintiff then moved for fees and costs pursuant to the 20 EAJA. Docket No. 30. The Court denied that motion without prejudice for failing to provide 21 supporting information. Docket No. 31. Now pending before the Court is Plaintiff’s renewed 22 motion for fees and costs pursuant to the EAJA. Docket No. 32. 23 II. STANDARDS 24 The Court has an independent obligation to review the reasonableness of the fees sought 25 under the EAJA regardless of whether the request is opposed. Douzat v. Saul, 2020 WL 3408706, 26 at *1 & n.1 (D. Nev. June 11, 2020) (collecting cases). This obligation is consistent with Ninth 27 Circuit precedent outside the EAJA context that similarly highlights the Court’s duty to review the 28 reasonableness of a fee request. See Gates v. Deukmejian, 987 F.2d 1392, 1401 (9th Cir. 1992) 1 (in addressing request for fees under 42 U.S.C. § 1988, indicating that “the district court [is] 2 required to independently review [a] fee request even absent [] objections”); see also Costa v. 3 Comm’r of Soc. Sec. Admin., 690 F.3d 1132, 1135 (9th Cir. 2012) (per curiam) (case law 4 interpreting § 1988 applies equally to the task of determining a reasonable fee under the EAJA). 5 This obligation is also highlighted by the local rules in this District. See Local Rule 7-2(d) (an 6 unopposed motion may be summarily granted except, inter alia, a motion for attorneys’ fees); 7 Local Rule 54-14(d) (“If no opposition is filed, the court may grant the motion [for attorneys’ fees] 8 after independent review of the record”). 9 Fees awarded pursuant to the EAJA are calculated pursuant to the lodestar method. Costa, 10 690 F.3d at 1135. Under the lodestar method, the Court determines a fee award by multiplying 11 the number of hours reasonably expended by a reasonable hourly rate. Hensley v. Eckerhart, 461 12 U.S. 424, 433 (1983). The lodestar figure is presumptively reasonable. Cunningham v. County of 13 Los Angeles, 879 F.2d 481, 488 (9th Cir. 1988).1 Courts have substantial discretion in fixing the 14 amount of an EAJA fee award. I.N.S. v. Jean, 496 U.S. 154, 163 (1990). 15 III. ANALYSIS 16 Plaintiff seeks to recover for the 13 hours of time spent by four attorneys and two legal 17 assistants, and seeks hourly rates of $217.54 and $100 respectively for that work. As discussed 18 below, the Court finds that the proposed lodestar is not reasonable and will reduce it accordingly. 19 A. HOURS EXPENDED 20 The touchstone in determining the hours for which attorneys’ fees should be calculated is 21 whether the expenditure of time was reasonable. See, e.g., Marrocco v. Hill, 291 F.R.D. 586, 588 22 (D. Nev. 2013). The Court “has a great deal of discretion in determining the reasonableness of the 23 fee and, as a general rule, [an appellate court] will defer to its determination . . . regarding the 24 reasonableness of the hours claimed by the [movant].” Prison Legal News v. Schwarzenegger, 25 608 F.3d 446, 453 (9th Cir. 2010) (quoting Gates, 987 F.2d at 1398). In reviewing the hours 26

27 1 Adjustments to the lodestar are proper in only rare and exceptional cases. Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air, 478 U.S. 546, 565 (1986). A departure from 28 the lodestar is not warranted in this case. 1 claimed, the Court may exclude hours related to overstaffing, duplication, and excessiveness, or 2 that are otherwise unnecessary. Hensley, 461 U.S. at 433. The reasonableness of hours expended 3 depends on the specific circumstances of each case. Camacho v. Bridgeport Fin’l, Inc., 523 F.3d 4 973, 978 (9th Cir. 2008). 5 Secretarial tasks are not recoverable in a fee award because they are generally considered 6 part of attorney overhead. See Missouri v. Jenkins, 491 U.S. 274, 288 n.10 (1989). Time spent 7 receiving documents, managing the case file, or sending communications is clerical in nature. E.g., 8 Nadarajah v. Holder, 569 F.3d 906, 921 (9th Cir. 2009) (identifying “filing” and “document 9 organization” as clerical tasks); Rosemary G. V. v. Saul, 2020 WL 6703123, *4 (S.D. Cal. Nov. 10 12, 2020) (collecting cases that “receipt” of an order or party filing is a clerical task). 11 1. Attorneys 12 Plaintiff seeks to recover for 5.3 hours of time expended by three attorneys tasked with 13 advancing the merits of the case. See Docket No. 32-2 at 1-2 (time for attorneys Daley, Marcus, 14 and Tarlock). Courts look with skepticism on such staffing because it can lead to duplication of 15 effort and unnecessary expenditure of time. Democratic Party of Wash. State v. Reed, 388 F.3d 16 1281, 1286 (9th Cir. 2004). Of course, awarding fees for work by multiple attorneys is not always 17 impermissible, as some degree of duplication may be appropriate. Moreno v. City of Sacramento, 18 534 F.3d 1106, 1112 (9th Cir. 2008). Although it seems at first blush that having three attorneys 19 work on the substance of this matter would be duplicative and unreasonable, the Court accepts 20 counsel’s explanation that they take a collaborate approach to ensure that any appeals they file are 21 meritorious. Docket No. 32 at 7. That such time was expended reasonably is reinforced by the 22 results counsel obtained for Plaintiff. Cf. Sorenson v. Mink, 239 F.3d 1140, 1147 (9th Cir. 2001). 23 As such, the Court will not reduce the attorney hours sought on the ground that they were 24 duplicative or that the case was overstaffed. Moreover, the Court finds the time expended by these 25 attorneys to be reasonable. 26 Plaintiff also seeks to recover for 1.0 hours of time expended by local counsel Taylor. See 27 Docket No. 32-2 at 2. Much of this time was used for clerical tasks. For example, attorney Taylor 28 seeks to recover for the time to “[d]ownload and file State Certificate,” and to “[o]pen case and 1 file.” Id. Such secretarial tasks are not compensable, even when they are performed by an 2 attorney. See Jenkins, 491 U.S. at 288 n.10. The Court finds that 0.5 hours were expended by 3 attorney Taylor on non-clerical matters.2 4 Accordingly, the Court will calculate the attorneys’ fees for 5.8 hours of work. 5 2. Legal Assistants 6 Plaintiff seeks to recover for 4.0 hours expended by legal assistant David Solomonik, 7 almost all of which was spent on clerical tasks such as filing documents, downloading documents, 8 and making notations in the file. Docket No. 32-2 at 1. Three billing entries include some 9 compensable time for non-clerical tasks, though those tasks are intermixed with non-compensable 10 time for filing documents. See id. (billing entry for 0.35 hours reflecting “drafted and filed a 14‐ 11 day ext to pay the filing fee” on November 3, 2021; billing entry for 0.5 hours reflecting 12 “drafted and filed motion for leave to file amended complaint” on November 5, 2021; and billing 13 entry for 0.25 hours reflecting “revised format and filed amended ext to pay the filing fee” on 14 November 5, 2021). Because these billing records include some time that is recoverable and some 15 clerical time that is not recoverable, the Court will allow half of the time at issue. The Court finds 16 that 0.55 hours were expended by legal assistant Solomonik on non-clerical matters. 17 Plaintiff also seeks to recover for 1.7 hours expended by case manager Anjali Rathore. 18 Docket No. 32-2 at 1. Such time includes clerical tasks, such as receiving, scanning, and faxing 19 documents. See id. Plaintiff has not advanced any meaningful showing that any of this time is 20 non-clerical in nature, so the Court will exclude this time from the lodestar. 21 B. HOURLY RATES 22 Under the EAJA, reasonable attorneys’ fees “shall be based upon prevailing market rates 23 for the kind and quality of the services furnished, except that . . . attorney fees shall not be awarded 24 in excess of $125 per hour unless the court determines that an increase in the cost of living or a 25 special factor, such as the limited availability of qualified attorneys for the proceedings involved, 26 justifies a higher fee.” 28 U.S.C. § 2412(d)(2)(A); see also Thangaraja v. Gonzales, 428 F.3d 870, 27 2 The billing entry for September 30, 2021, includes a mix of clerical and non-clerical 28 activities, so the Court will allow for half of that time in lodestar. 1 876-77 (9th Cir. 2005). Even when a showing has been made for enhanced rates under the EAJA, 2 the movant must also show that the rates sought are in line with the prevailing rates in the 3 community for similar services by lawyers of reasonably comparable skill, experience, and 4 reputation. Nadarajah, 569 F.3d at 916. The fee applicant bears the burden of producing 5 satisfactory evidence in support of the rates being sought. Camacho, 523 F.3d at 980. 6 1. Attorneys 7 Plaintiff seeks to recover for attorney time at the maximum allowable EAJA hourly rate of 8 $217.54. Docket No. 32 at 4. This aspect of the motion fails on two fronts. First, whether to 9 award fees above the statutory cap requires a showing that the adjustment is warranted as an 10 exercise of discretion. See, e.g., Douzat, 2020 WL 3408706, at *3. The renewed motion does not 11 include meaningful argument that an adjustment beyond the statutory cap is warranted in this 12 case.3,4 Second, even were the Court to find an adjustment of the statutory cap to be warranted, 13 the fee applicant must also show that the hourly rates sought are consistent with the prevailing 14 rates in this community for attorneys of similar experience, skill, and reputation. Nadarajah, 569 15 F.3d at 916. An insufficient showing has been made on that front. That shortcoming is particularly 16 significant with respect to attorney Tarlock, who worked by far the most hours on this case. 17 Attorney Tarlock’s work was done with roughly four years of experience. See Docket No. 32-3 at 18 3 The motion indicates without elaboration that there are a limited number of qualified 19 attorneys. Docket No. 32 at 4. The Ninth Circuit has identified three requirements before the Court exceeds the EAJA statutory cap on the hourly rate based on special factors: 20 First, the attorney must possess distinctive knowledge and skills 21 developed through a practice specialty. Secondly, those distinctive skills must be needed in the litigation. Lastly, those skills must not 22 be available elsewhere at the statutory rate.

23 Love v. Reilly, 924 F.2d 1492, 1496 (9th Cir. 1991) (discussing Pirus v. Bowen, 869 F.2d 536, 541- 42 (9th Cir. 1989)). The fee applicant bears the burden of establishing the basis for such an upward 24 adjustment. Natural Res. Defense Council, Inc. v. Winter, 543 F.3d 1152, 1161 (9th Cir. 2008). An unelaborated assertion of a limited availability of skilled attorneys is not sufficient to meet that 25 burden. See, e.g., Independent Towers of Wash. v. Wash., 350 F.3d 925, 929 (9th Cir. 2003) (the “bare assertion of an issue does not preserve a claim”). 26 4 The motion indicates that changes in cost of living warrant an adjustment to the statutory 27 cap. Docket No. 32 at 4-5. A cost-of-living enhancement is not automatic and mere reference to inflation statistics is not sufficient to justify an enhanced fee award. Douzat, 2020 WL 3408706, 28 at *3 (citing Bryant v. Comm’r of Soc. Sec., 578 F.3d 443, 450 (6th Cir. 2009)). 1 4. It is not uncommon in this District for the rates for attorneys will a similar level of experience 2 to be requested and/or set below the rate being sought here, including in cases that are more 3 complex than this social security matter.5 Plaintiff’s efforts for a higher rate consist of a statement 4 that Tarlock has been awarded a rate of $217.54 in cases litigated elsewhere. See Docket No. 32 5 at 8. While rates that have been awarded to an attorney in other cases can prove helpful as a 6 general matter, United Steelworkers of Am. v. Phelps Dodge Corp., 896 F.2d 403, 407 (9th Cir. 7 1990), the rate determinations are not so helpful in this case because they were awarded in far- 8 away jurisdictions like the Northern District of Illinois, see, e.g., Miranda v. Law Office of D. Scott 9 Carruthers, 2012 WL 78236, at *7 (E.D. Cal. Jan. 10, 2012) (rejecting reliance on rate 10 determinations made in other districts). “Information on the prevailing rates in other communities 11 is of little assistance to the court in determining whether plaintiff’s requested rate for [attorney 12 services] is within the prevailing rates in [this community].” Joe Hand Promotions, Inc. v. 13 Albright, 2013 WL 4094403, at *2 (E.D. Cal. Aug. 13, 2013); see also Prison Legal News, 608 14 F.3d at 454 (affirming refusal to rely on data used for rate determinations in the District of 15 Columbia because it is not necessarily “a sound basis for determining rates elsewhere, let alone in 16 a legal market 3,000 miles away”).6 Given the lack of persuasive evidence of a different prevailing 17 rate in this community, the Court will calculate attorney fees at the rate of $125. 18 19

20 5 See Wesco Ins. Co. v. Smart Indus. Corp., 2020 WL 3050710, at *2 (D. Nev. June 8, 2020) (adopting hourly rate of $150 for fourth-year associate work); see also Garmong v. Lyon 21 Cnty., 2019 WL 320567, *2 (D. Nev. Jan. 24, 2019) (adopting hourly rate of $160 for partner work and $140 for associate work); Bartech Sys. Int’l, Inc. v. Mobile Simple Sols., Inc., 2017 WL 22 2562104, at *2 (D. Nev. June 13, 2017) (adopting hourly rate of $150 for associate work); Jones v. Nye Cnty., 2016 WL 7441068, at *3 (D. Nev. Dec. 27, 2016) (adopting hourly rate of $150 for 23 partner work and $125 for associate work); Am. Contractors Indem. Co. v. Emerald Assets L.P., 2016 WL 4591767, at *5 (D. Nev. Sept. 2, 2016) (adopting hourly rate of $125 for associate work); 24 Home Gambling Network, Inc. v. Piche, 2015 WL 1734928, at *10-11 (D. Nev. Apr. 16, 2015) (in relatively complex patent case, adopting requested hourly rate of $95 for work done by “[n]ewly 25 licensed attorney”). 26 6 Rates from other jurisdictions may be used if Nevada attorneys are unwilling or unable to perform because they lack the degree of experience, expertise, or specialization required to 27 handle properly the case. Gates v. Deukmejian, 987 F.2d 1392, 1405 (9th Cir. 1992). Plaintiff has not made a sufficient showing that Nevada attorneys are unable or unwilling to take this type of 28 social security case. 1 2. Legal Assistant 2 Plaintiff’s showing as to the rate for legal assistant Solomonik is also thin. Plaintiff submits 3 a regional survey of legal assistant rates, which is not specific to Nevada and sheds no light on the 4 rates for legal assistant work for this type of case. See Docket No. 32 at 6; see also Docket No. 5 32-4. Plaintiff also submits that legal assistant Solomonik was awarded $100 in the mid-western 6 districts discussed above, which is of little help to determining a prevailing market rate in this 7 District. Nonetheless, Plaintiff essentially argues that legal assistant Solomonik was performing 8 paralegal tasks in this case. See Docket No. 32 at 6 (referencing the “paralegal duties” performed). 9 The Court may rely on its own familiarity with the rates in this District in fashioning an appropriate 10 rate for the lodestar, Ingram v. Oroudjian, 647 F.3d 925, 928 (9th Cir. 2011), and finds that the 11 suggested hourly rate of $100 is appropriate for someone performing paralegal tasks with 12 experience comparable to Solomonik’s experience, see Gibson v. Kijakazi, 2022 WL 125316, at 13 *3 (D. Nev. Jan. 12, 2022) (finding $100 rate for paralegal time in social security case to be 14 reasonable); see also Int’l Inst. of Mgmt. v. Org. for Econ. Coop. & Dev., 2019 WL 5578485, at 15 *7 (D. Nev. Oct. 29, 2019) (“For the Las Vegas market, paralegals are typically paid between $75 16 and $125 per hour”). Accordingly, the Court will calculate the lodestar for legal assistant 17 Solomonik’s time at a rate of $100. 18 C. LODESTAR CALCULATION 19 In light of the above, the Court awards 5.8 hours of attorney time at an hourly rate of $125, 20 as well as 0.55 hours of legal assistant time at an hourly rate of $100. Therefore, Plaintiff is entitled 21 to recover $780 in fees. 22 IV. COSTS 23 In addition to the fees discussed above, Plaintiff seeks to recover the filing fee paid in this 24 case. Docket No. 32 at 9. The filing fee is properly awarded under the EAJA. See, e.g., Hassine 25 v. Johnson, 53 F. Supp. 3d 1297, 1308 (E.D. Cal. 2014). Accordingly, the Court awards Plaintiff 26 $402 in costs. 27 28 1] V. CONCLUSION 2 As discussed more fully above, Plaintiffs application for fees and costs is GRANTED in 3|| part and DENIED in part. Plaintiff is awarded $780 in fees and $402 in costs. 4 IT IS SO ORDERED 5 Dated: December 13, 2022

Nancy J. Koppeés, 7 United States Magistrate Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28