1 UNITED STATES DISTRICT COURT
2 DISTRICT OF NEVADA
3 * * *
4 TAMMI J. JOHNSON, Case No. 2:24-cv-01156-EJY
5 Plaintiff, ORDER 6 v.
7 COMMISSIONER OF SOCIAL SECURITY,
8 Defendant.
9 10 Pending before the Court is Plaintiff’s Counsel’s Motion for Attorney Fees Pursuant to the 11 Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412. ECF No. 21. Defendant Commissioner 12 filed a Response. ECF No. 22. Plaintiff did not file a reply. The Court finds as follows. 13 I. BACKGROUND 14 Plaintiff, represented by counsel, filed her Complaint requesting review of the final decision 15 of the Commissioner of Social Security denying benefits under Title II of the Social Security Act on 16 November 21, 2024. ECF No. 15. On December 23, 2024, the parties filed a stipulation to 17 voluntarily remand the case, which was granted. ECF Nos. 18, 19. 18 Plaintiff’s counsel, Hal Taylor, of Counsel with the Olinsky Law Group, filed the instant 19 Motion for Attorney Fees Pursuant to 42 U.S.C. § 2412. In support of this request, counsel provides 20 records indicating that 75.4 hours of attorney time, and 10.3 hours of paralegal time, were expended 21 working on this matter. ECF No. 21-1 (and exhibits thereto). The Commissioner objects to the 22 award arguing the fees are unreasonable contending no reply brief was filed (which is true), the issue 23 presented were “run-of-the mill” especially in light of Plaintiff’s counsel’s experience, the fees 24 requested are more than three times the average award nationally and five times the award for cases 25 arising in the District of Nevada, the time spent reviewing the certified administrative record 26 (“CAR”), 54.8 hours specifically, are excessive, and clerical task billings are excessive. ECF No. 27 22. 1 II. STANDARD 2 The EAJA provides for an award of “reasonable” attorney fees. 28 U.S.C. § 2412(d)(2)(A). 3 Hensley v. Eckerhart, 461 U.S. 424 (1983), established the steps for considering reasonable fees 4 under 42 U.S.C. § 1988. Consistent with Hensley, the prevailing party bears the burden of showing 5 that the claimed fees are reasonable. 461 U.S. at 433, 427; accord Blum v. Stenson, 465 U.S. 886, 6 897 (1984); Gonzalez v. City of Maywood, 729 F.3d 1196, 1202 (9th Cir. 2013). 7 Under Hensley, the Court must determine the “number of hours reasonably expended on the 8 litigation” and exclude hours not meeting this standard. 461 U.S. at 433-34. “[T]he skill and 9 experience of lawyers vary widely,” and courts should exclude hours that are “excessive, redundant, 10 or otherwise unnecessary.” Id. As part of this inquiry, courts “may consider” that 20 to 40 hours is 11 the range most often requested and granted in Social Security cases, but each case also requires 12 consideration of “case-specific factors including, among others, the complexity of the legal issues, 13 the procedural history, the size of the record, and when counsel was retained.” Costa v. Comm’r of 14 Soc. Sec., 690 F.3d 1132, 1134-36 (9th Cir. 2012). When faced with a large fee application, as is 15 true here, the Court may make “across-the-board percentage cuts either in the number of hours 16 claimed or in the final lodestar figure.” Gonzalez, 729 F.3d at 1203. 17 The publicly available database that collects award of fees and other expenses paid under the 18 EAJA, reveals information on the average amounts paid EAJA awards for “Actions for Judicial 19 Review of the Final Decision of the Commissioner of Social Security under the Social Security Act” 20 in fiscal years 2019, 2020, 2021, 2022, 2023, and 2024. https://acus.gov/eaja/background. The 21 Court takes judicial notice of these amount. United States v. 14.02 Acres of Land More or Less in 22 Fresno Cnty., 547 F.3d 943, 955 (9th Cir. 2008) (quoting Interstate Nat. Gas Co. v. S. California 23 Cas. Co., 209 F.2d 380, 385 (9th Cir. 1953), for position that a court may take judicial notice of 24 “‘records and reports of administrative bodies’”). 25 III. ANALYSIS 26 Plaintiff’s fees for reviewing the CAR are excessive. A review of the billing records provided 27 by Plaintiff’s counsel demonstrate 54.8 hours are attributed to reviewing the administrative record. 1 ECF No. 21-4 at 1-4. At the billing rate requested, $251.84 per hour, which is not excessive, the 2 total billed for this activity equals $13,800.83. 3 The Court also reviewed Plaintiff’s brief seeking remand and finds the issues presented were 4 not overly complex. Two issues were presented (ECF No. 15 at 8-24) that are common to many 5 Social Security cases that have come before this Court. A review of Plaintiff’s brief also demonstrate 6 no citations to the medical records in the CAR were made. ECF No. 15, generally. These factors 7 further support a reduction in the time spent reviewing the CAR as well as a reduction of time for 8 preparation of Plaintiff’s opening brief. 9 Given the skill and experience of Plaintiff’s counsel, with which the Court is familiar based 10 on the number of Social Security cases that have come before it filed by this counsel, the Court finds 11 reducing this number by half that allows for 27.4 hours of CAR review and fees in the amount of 12 $6,900.42. See Costa, 690 F.3d at 1134 (allowing the Court to consider the skill and experience of 13 counsel when determining the reasonableness of a fee request.). 14 Plaintiff also seeks fees for clerical tasks that are not properly awarded. Missouri v. Jenkins, 15 491 U.S. 274, 288 n.10 (1989). Clerical tasks include “preparing, reviewing, proofreading, 16 downloading, or filing documents.” Sartiaguda v. Comm’r of Soc. Sec., Case No. 2:17-CV-2280- 17 DMC, 2021 WL 3912121, at *4 (E.D. Cal. Sept. 1, 2021). Of the non-compensable clerical tasks 18 included in Counsel’s itemization $800 is non-compensable. 19 Together, the Court reduces the fees requested by $7,700.42, which leaves $12,318.32 in fees 20 and $405.00 for the filing fee. 21 Under the EAJA, fees are payable to the “prevailing party.” 28 U.S.C. § 2412, 22 2412(d)(1)(A); Astrue v. Ratliff, 560 U.S. 586, 589 (2010). The presence of an assignment does not 23 change the analysis before this Court, because the ability to honor an assignment will depend on 24 whether the fees are subject to any offset allowed under the United States Department of the 25 Treasury’s Offset Program. Ratliff, 560 U.S. at 597-98.
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1 UNITED STATES DISTRICT COURT
2 DISTRICT OF NEVADA
3 * * *
4 TAMMI J. JOHNSON, Case No. 2:24-cv-01156-EJY
5 Plaintiff, ORDER 6 v.
7 COMMISSIONER OF SOCIAL SECURITY,
8 Defendant.
9 10 Pending before the Court is Plaintiff’s Counsel’s Motion for Attorney Fees Pursuant to the 11 Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412. ECF No. 21. Defendant Commissioner 12 filed a Response. ECF No. 22. Plaintiff did not file a reply. The Court finds as follows. 13 I. BACKGROUND 14 Plaintiff, represented by counsel, filed her Complaint requesting review of the final decision 15 of the Commissioner of Social Security denying benefits under Title II of the Social Security Act on 16 November 21, 2024. ECF No. 15. On December 23, 2024, the parties filed a stipulation to 17 voluntarily remand the case, which was granted. ECF Nos. 18, 19. 18 Plaintiff’s counsel, Hal Taylor, of Counsel with the Olinsky Law Group, filed the instant 19 Motion for Attorney Fees Pursuant to 42 U.S.C. § 2412. In support of this request, counsel provides 20 records indicating that 75.4 hours of attorney time, and 10.3 hours of paralegal time, were expended 21 working on this matter. ECF No. 21-1 (and exhibits thereto). The Commissioner objects to the 22 award arguing the fees are unreasonable contending no reply brief was filed (which is true), the issue 23 presented were “run-of-the mill” especially in light of Plaintiff’s counsel’s experience, the fees 24 requested are more than three times the average award nationally and five times the award for cases 25 arising in the District of Nevada, the time spent reviewing the certified administrative record 26 (“CAR”), 54.8 hours specifically, are excessive, and clerical task billings are excessive. ECF No. 27 22. 1 II. STANDARD 2 The EAJA provides for an award of “reasonable” attorney fees. 28 U.S.C. § 2412(d)(2)(A). 3 Hensley v. Eckerhart, 461 U.S. 424 (1983), established the steps for considering reasonable fees 4 under 42 U.S.C. § 1988. Consistent with Hensley, the prevailing party bears the burden of showing 5 that the claimed fees are reasonable. 461 U.S. at 433, 427; accord Blum v. Stenson, 465 U.S. 886, 6 897 (1984); Gonzalez v. City of Maywood, 729 F.3d 1196, 1202 (9th Cir. 2013). 7 Under Hensley, the Court must determine the “number of hours reasonably expended on the 8 litigation” and exclude hours not meeting this standard. 461 U.S. at 433-34. “[T]he skill and 9 experience of lawyers vary widely,” and courts should exclude hours that are “excessive, redundant, 10 or otherwise unnecessary.” Id. As part of this inquiry, courts “may consider” that 20 to 40 hours is 11 the range most often requested and granted in Social Security cases, but each case also requires 12 consideration of “case-specific factors including, among others, the complexity of the legal issues, 13 the procedural history, the size of the record, and when counsel was retained.” Costa v. Comm’r of 14 Soc. Sec., 690 F.3d 1132, 1134-36 (9th Cir. 2012). When faced with a large fee application, as is 15 true here, the Court may make “across-the-board percentage cuts either in the number of hours 16 claimed or in the final lodestar figure.” Gonzalez, 729 F.3d at 1203. 17 The publicly available database that collects award of fees and other expenses paid under the 18 EAJA, reveals information on the average amounts paid EAJA awards for “Actions for Judicial 19 Review of the Final Decision of the Commissioner of Social Security under the Social Security Act” 20 in fiscal years 2019, 2020, 2021, 2022, 2023, and 2024. https://acus.gov/eaja/background. The 21 Court takes judicial notice of these amount. United States v. 14.02 Acres of Land More or Less in 22 Fresno Cnty., 547 F.3d 943, 955 (9th Cir. 2008) (quoting Interstate Nat. Gas Co. v. S. California 23 Cas. Co., 209 F.2d 380, 385 (9th Cir. 1953), for position that a court may take judicial notice of 24 “‘records and reports of administrative bodies’”). 25 III. ANALYSIS 26 Plaintiff’s fees for reviewing the CAR are excessive. A review of the billing records provided 27 by Plaintiff’s counsel demonstrate 54.8 hours are attributed to reviewing the administrative record. 1 ECF No. 21-4 at 1-4. At the billing rate requested, $251.84 per hour, which is not excessive, the 2 total billed for this activity equals $13,800.83. 3 The Court also reviewed Plaintiff’s brief seeking remand and finds the issues presented were 4 not overly complex. Two issues were presented (ECF No. 15 at 8-24) that are common to many 5 Social Security cases that have come before this Court. A review of Plaintiff’s brief also demonstrate 6 no citations to the medical records in the CAR were made. ECF No. 15, generally. These factors 7 further support a reduction in the time spent reviewing the CAR as well as a reduction of time for 8 preparation of Plaintiff’s opening brief. 9 Given the skill and experience of Plaintiff’s counsel, with which the Court is familiar based 10 on the number of Social Security cases that have come before it filed by this counsel, the Court finds 11 reducing this number by half that allows for 27.4 hours of CAR review and fees in the amount of 12 $6,900.42. See Costa, 690 F.3d at 1134 (allowing the Court to consider the skill and experience of 13 counsel when determining the reasonableness of a fee request.). 14 Plaintiff also seeks fees for clerical tasks that are not properly awarded. Missouri v. Jenkins, 15 491 U.S. 274, 288 n.10 (1989). Clerical tasks include “preparing, reviewing, proofreading, 16 downloading, or filing documents.” Sartiaguda v. Comm’r of Soc. Sec., Case No. 2:17-CV-2280- 17 DMC, 2021 WL 3912121, at *4 (E.D. Cal. Sept. 1, 2021). Of the non-compensable clerical tasks 18 included in Counsel’s itemization $800 is non-compensable. 19 Together, the Court reduces the fees requested by $7,700.42, which leaves $12,318.32 in fees 20 and $405.00 for the filing fee. 21 Under the EAJA, fees are payable to the “prevailing party.” 28 U.S.C. § 2412, 22 2412(d)(1)(A); Astrue v. Ratliff, 560 U.S. 586, 589 (2010). The presence of an assignment does not 23 change the analysis before this Court, because the ability to honor an assignment will depend on 24 whether the fees are subject to any offset allowed under the United States Department of the 25 Treasury’s Offset Program. Ratliff, 560 U.S. at 597-98. To comply with the Treasury Offset 26 Program, when a court issues an order for EAJA fees (ordered payable to Plaintiff, not counsel), the 27 government considers any assignment of EAJA fees to determine whether they are subject to any 1 made in counsel’s name based on the government’s discretionary waiver of the requirements of the 2 Anti-Assignment Act, 31 U.S.C. § 3727. Because of these considerations, Defendant asks that this 3 Court specify in its EAJA award that the Treasury Offset Program cannot honor the assignment 4 without prior consideration. 5 IV. ORDER 6 IT IS HEREBY ORDERED that the Motion for Attorney Fees Pursuant to the Equal Access 7 to Justice Act (ECF No. 21) is GRANTED in part and DENIED in part. 8 IT IS FURTHER ORDERED that a fee award in the amount of $12,318.32 for work before 9 the Court is to be paid to Hal Taylor at the Olinsky Law Group from the sums held by the Social 10 Security Commissioner from Plaintiff’s past-due benefits. 11 IT IS FURTHER ORDERED that costs in the amount of $405 are awarded to the Olinsky 12 Law Group under 28 U.S.C. § 1920. 13 IT IS FURTHER ORDERED that the award of fees will be honored upon consideration of 14 the Treasury Offset Program. 15 Dated this 27th day of May, 2025.
17 ELAYNA J. YOUCHAH 18 UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27