1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MARSHIE MONROE ALLEN, III, No. 2:20-cv-01886-DMC 12 Plaintiff, 13 v. ORDER 14 COMMISSIONER OF SOCIAL SECURITY, 15 Defendant. 16 17 18 Plaintiff, who is proceeding with retained counsel, brought this action for judicial 19 review of a final decision of the Commissioner of Social Security under 42 U.S.C. § 405(g). 20 Final judgment has been entered. Pending before the Court in this closed case is Plaintiff’s 21 counsel’s motion for an award of fees and costs under the Equal Access to Justice Act (EAJA), 22 ECF No. 24, counsel’s supporting declaration, ECF No. 25, Defendant’s opposition, ECF No. 26, 23 counsel’s reply, ECF No. 27, and supplement to counsel’s reply, ECF No. 28. In the initial 24 motion, Plaintiff’s counsel seeks an award of $10,745.26, representing $10,324.41 in attorney’s 25 fees plus $420.85 in costs.1 In the reply brief, counsel seeks an additional $986.16 in fees 26
27 1 Counsel seeks compensation at varying rates, ranging from $207.78 per hour to $231.49 per hour. See ECF No. 25-2. Defendant raises no objections to the various hourly rates, 28 which the Court finds reasonable as rates rose over the time period claimed. 1 associated with the EAJA motion, for a total award sought of $11,310.57 in fees plus $420.85 in 2 costs. 3 4 I. STANDARDS FOR EAJA MOTION 5 Because this Court issued a remand pursuant to sentence four of 42 U.S.C. 6 § 405(g), plaintiff is a prevailing party for EAJA purposes. See Flores v. Shalala, 42 F.3d 562 7 (9th Cir. 1995). Under the EAJA, an award of reasonable attorney’s fees is appropriate unless the 8 Commissioner’s position was “substantially justified” on law and fact with respect to the issue(s) 9 on which the court based its remand. 28 U.S.C. § 2412(d)(1)(A); see Flores, 42 F.3d at 10 569. No presumption arises that the Commissioner’s position was not substantially justified 11 simply because the Commissioner did not prevail. See Kali v. Bowen, 854 F.2d 329 (9th Cir. 12 1988). The Commissioner’s position is substantially justified if there is a genuine dispute. See 13 Pierce v. Underwood, 487 U.S. 552 (1988). The burden of establishing substantial justification is 14 on the government. See Gutierrez v. Barnhart, 274 F.3d 1255, 1258 (9th Cir. 2001). 15 In determining substantial justification, the Court reviews both the underlying 16 governmental action being defended in the litigation and the positions taken by the government 17 in the litigation itself. See Barry v. Bowen, 825 F.2d 1324, 1331 (9th Cir. 1987), disapproved on 18 other grounds, In re Slimick, 928 F.2d 304 (9th Cir. 1990). For the government’s position to be 19 considered substantially justified, however, it must establish substantial justification for both the 20 position it took at the agency level as well as the position it took in the district court. See Kali v. 21 Bowen, 854 F.2d 329, 332 (9th Cir. 1998). Where, however, the underlying government action 22 was not substantially justified, it is unnecessary to determine whether the government’s litigation 23 position was substantially justified. See Andrew v. Bowen, 837 F.2d 875, 880 (9th Cir. 1988). 24 “The nature and scope of the ALJ’s legal errors are material in determining whether the 25 Commissioner’s decision to defend them was substantially justified.” Sampson v. Chater, 103 26 F.3d 918, 922 (9th Cir. 1996) (citing Flores, 49 F.3d at 570). If there is no reasonable basis in law 27 and fact for the government’s position with respect to the issues on which the court based its 28 determination, the government’s position is not “substantially justified” and an award of EAJA 1 fees is warranted. See Flores, 42 F.3d at 569-71. A strong indication the government’s position 2 was not substantially justified is a court’s “holding that the agency’s decision . . . was 3 unsupported by substantial evidence. . . .” Meier v. Colvin, 727 F.3d 867, 870 (9th Cir. 2013). 4 Under the EAJA, the Court may award “reasonable attorney’s fees,” which are set 5 at the market rate. See 28 U.S.C. § 2412(d)(2)(A). The party seeking an award under the EAJA 6 bears the burden of establishing the fees requested are reasonable. See Hensley v. Eckerhart, 461 7 U.S. 424, 434 (1983); Atkins v. Apfel, 154 F.3d 988 (9th Cir. 1998); see also 28 U.S.C. § 8 2412(d)(1)(B) (“A party seeking an award of fees and other expenses shall . . . submit to the court 9 an application for fees and other expenses which shows . . . the amount sought, including an 10 itemized statement from any attorney . . . stating the actual time expended”). The Court has an 11 independent duty to review the evidence and determine the reasonableness of the fees requested. 12 See Hensley, 461 U.S. at 433, 436-47. The “court can impose a reduction of up to 10 percent – a 13 ‘haircut’ – based purely on the exercise of its discretion and without more specific explanation.” 14 Costa v. Comm’r of Soc. Sec. Admin., 690 F.3d 1132, 1136 (9th Cir. 2012) (per curiam) (quoting 15 Moreno v. City of Sacramento, 534 F.3d 1106, 1111 (9th Cir. 2008)). A reduction of more than 16 10% requires specific findings regarding the unreasonableness of the amount reduced. See id. 17 Finally, in most cases fees awarded under the EAJA are payable directly to the 18 client, not counsel. See Astrue v. Ratliff, 130 S.Ct. 2521 (2010). 19 20 II. DISCUSSION 21 The Commissioner filed an opposition to Plaintiff’s motion for fees and expenses 22 under the EAJA. See ECF No. 26. The Commissioner opposes this motion under two specific 23 arguments: (a) the requested attorney’s fees are unreasonable, and (b) any fees awarded must be 24 payable to Plaintiff if they are subject to the treasury offset program. Id. The Commissioner 25 raises no argument concerning substantial justification and the Court finds that Plaintiff’s position 26 was substantially justified. 27 / / / 28 / / / 1 A. Reasonableness of Fees 2 In support of his opposition to the reasonableness of fees, the Commissioner 3 argues Plaintiff billed excessively for his work, and clerical tasks should not be compensated. 4 1. Excessive Hours Billed 5 Plaintiff’s counsel billed 45.44 attorney hours, an amount Defendant believes is 6 excessive of those generally billed in social security cases in district court. See ECF No. 26. 7 Defendant first points to the brief twelve-page motion submitted by Plaintiff arguing two “run-of- 8 the-mill” issues should not have taken excess of the typical range of hours. Id. Defendant then 9 emphasizes that, starting February 2, 2022, through March 23, 2022, Plaintiff’s counsel took 10 twenty-six hours reviewing and indexing medical records. Id.
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1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MARSHIE MONROE ALLEN, III, No. 2:20-cv-01886-DMC 12 Plaintiff, 13 v. ORDER 14 COMMISSIONER OF SOCIAL SECURITY, 15 Defendant. 16 17 18 Plaintiff, who is proceeding with retained counsel, brought this action for judicial 19 review of a final decision of the Commissioner of Social Security under 42 U.S.C. § 405(g). 20 Final judgment has been entered. Pending before the Court in this closed case is Plaintiff’s 21 counsel’s motion for an award of fees and costs under the Equal Access to Justice Act (EAJA), 22 ECF No. 24, counsel’s supporting declaration, ECF No. 25, Defendant’s opposition, ECF No. 26, 23 counsel’s reply, ECF No. 27, and supplement to counsel’s reply, ECF No. 28. In the initial 24 motion, Plaintiff’s counsel seeks an award of $10,745.26, representing $10,324.41 in attorney’s 25 fees plus $420.85 in costs.1 In the reply brief, counsel seeks an additional $986.16 in fees 26
27 1 Counsel seeks compensation at varying rates, ranging from $207.78 per hour to $231.49 per hour. See ECF No. 25-2. Defendant raises no objections to the various hourly rates, 28 which the Court finds reasonable as rates rose over the time period claimed. 1 associated with the EAJA motion, for a total award sought of $11,310.57 in fees plus $420.85 in 2 costs. 3 4 I. STANDARDS FOR EAJA MOTION 5 Because this Court issued a remand pursuant to sentence four of 42 U.S.C. 6 § 405(g), plaintiff is a prevailing party for EAJA purposes. See Flores v. Shalala, 42 F.3d 562 7 (9th Cir. 1995). Under the EAJA, an award of reasonable attorney’s fees is appropriate unless the 8 Commissioner’s position was “substantially justified” on law and fact with respect to the issue(s) 9 on which the court based its remand. 28 U.S.C. § 2412(d)(1)(A); see Flores, 42 F.3d at 10 569. No presumption arises that the Commissioner’s position was not substantially justified 11 simply because the Commissioner did not prevail. See Kali v. Bowen, 854 F.2d 329 (9th Cir. 12 1988). The Commissioner’s position is substantially justified if there is a genuine dispute. See 13 Pierce v. Underwood, 487 U.S. 552 (1988). The burden of establishing substantial justification is 14 on the government. See Gutierrez v. Barnhart, 274 F.3d 1255, 1258 (9th Cir. 2001). 15 In determining substantial justification, the Court reviews both the underlying 16 governmental action being defended in the litigation and the positions taken by the government 17 in the litigation itself. See Barry v. Bowen, 825 F.2d 1324, 1331 (9th Cir. 1987), disapproved on 18 other grounds, In re Slimick, 928 F.2d 304 (9th Cir. 1990). For the government’s position to be 19 considered substantially justified, however, it must establish substantial justification for both the 20 position it took at the agency level as well as the position it took in the district court. See Kali v. 21 Bowen, 854 F.2d 329, 332 (9th Cir. 1998). Where, however, the underlying government action 22 was not substantially justified, it is unnecessary to determine whether the government’s litigation 23 position was substantially justified. See Andrew v. Bowen, 837 F.2d 875, 880 (9th Cir. 1988). 24 “The nature and scope of the ALJ’s legal errors are material in determining whether the 25 Commissioner’s decision to defend them was substantially justified.” Sampson v. Chater, 103 26 F.3d 918, 922 (9th Cir. 1996) (citing Flores, 49 F.3d at 570). If there is no reasonable basis in law 27 and fact for the government’s position with respect to the issues on which the court based its 28 determination, the government’s position is not “substantially justified” and an award of EAJA 1 fees is warranted. See Flores, 42 F.3d at 569-71. A strong indication the government’s position 2 was not substantially justified is a court’s “holding that the agency’s decision . . . was 3 unsupported by substantial evidence. . . .” Meier v. Colvin, 727 F.3d 867, 870 (9th Cir. 2013). 4 Under the EAJA, the Court may award “reasonable attorney’s fees,” which are set 5 at the market rate. See 28 U.S.C. § 2412(d)(2)(A). The party seeking an award under the EAJA 6 bears the burden of establishing the fees requested are reasonable. See Hensley v. Eckerhart, 461 7 U.S. 424, 434 (1983); Atkins v. Apfel, 154 F.3d 988 (9th Cir. 1998); see also 28 U.S.C. § 8 2412(d)(1)(B) (“A party seeking an award of fees and other expenses shall . . . submit to the court 9 an application for fees and other expenses which shows . . . the amount sought, including an 10 itemized statement from any attorney . . . stating the actual time expended”). The Court has an 11 independent duty to review the evidence and determine the reasonableness of the fees requested. 12 See Hensley, 461 U.S. at 433, 436-47. The “court can impose a reduction of up to 10 percent – a 13 ‘haircut’ – based purely on the exercise of its discretion and without more specific explanation.” 14 Costa v. Comm’r of Soc. Sec. Admin., 690 F.3d 1132, 1136 (9th Cir. 2012) (per curiam) (quoting 15 Moreno v. City of Sacramento, 534 F.3d 1106, 1111 (9th Cir. 2008)). A reduction of more than 16 10% requires specific findings regarding the unreasonableness of the amount reduced. See id. 17 Finally, in most cases fees awarded under the EAJA are payable directly to the 18 client, not counsel. See Astrue v. Ratliff, 130 S.Ct. 2521 (2010). 19 20 II. DISCUSSION 21 The Commissioner filed an opposition to Plaintiff’s motion for fees and expenses 22 under the EAJA. See ECF No. 26. The Commissioner opposes this motion under two specific 23 arguments: (a) the requested attorney’s fees are unreasonable, and (b) any fees awarded must be 24 payable to Plaintiff if they are subject to the treasury offset program. Id. The Commissioner 25 raises no argument concerning substantial justification and the Court finds that Plaintiff’s position 26 was substantially justified. 27 / / / 28 / / / 1 A. Reasonableness of Fees 2 In support of his opposition to the reasonableness of fees, the Commissioner 3 argues Plaintiff billed excessively for his work, and clerical tasks should not be compensated. 4 1. Excessive Hours Billed 5 Plaintiff’s counsel billed 45.44 attorney hours, an amount Defendant believes is 6 excessive of those generally billed in social security cases in district court. See ECF No. 26. 7 Defendant first points to the brief twelve-page motion submitted by Plaintiff arguing two “run-of- 8 the-mill” issues should not have taken excess of the typical range of hours. Id. Defendant then 9 emphasizes that, starting February 2, 2022, through March 23, 2022, Plaintiff’s counsel took 10 twenty-six hours reviewing and indexing medical records. Id. Furthermore, Defendant alleges 11 Plaintiff counsel stated “the medical evidence in this case [is] like most social security cases . . .” 12 and was neither unique nor difficult. Id. Defendant then argues that Plaintiff’s counsel’s “block- 13 billing [made] it impossible to discern why he spent 26 hours reviewing the record” when the 14 summary of relevant medical evidence spanned just over one page, citing fewer than sixty pages. 15 Id. The Commissioner did admit that the document was over 2,000 pages but argued that there 16 were many blank pages. Id. Finally, Defendant contends that Plaintiff’s counsel’s argument that 17 the time was justified because he did not represent Plaintiff prior to the appeal and was unfamiliar 18 with the record is incorrect as Plaintiff’s counsel provided a thorough chronological summary of 19 the medical evidence at the hearing. Id. 20 The Court finds the Commissioner’s arguments unpersuasive. While the 21 Plaintiff’s brief was only twelve pages in length, that is not properly correlated to how many 22 documents there were to be reviewed. With a page count of over 2,100 pages, minus just over 60 23 blank pages, read within 26 hours, Plaintiff’s Counsel’s rate of review averages out to 1.3 pages a 24 minute. It would be reasonable to believe that Plaintiff did actually expended 26 hours, if not 25 more, to complete his review and index of the medical records. While this case may have 26 contained “run-of-the-mill” issues, with a document review as extensive as this, the attorney 27 hours submitted by Plaintiff are reasonable. 28 / / / 1 2. Clerical Tasks 2 The Commissioner argues that tasks that do not require legal training that are 3 supposed to be reflected in the cost of business, should not be performed by the attorney, and 4 should not be charged to the Commissioner. Id. The Commissioner broadly accuses Plaintiff’s 5 counsel of inflating the overall bill through six- to twelve-minute increments. 6 The Court does not find this argument compelling as there is a glaring lack of 7 specificity. The Commissioner repeatedly cites case law holding that secretarial or docket tasks 8 should not be approved. The Commissioner fails, however, to specify any grievance against this 9 Plaintiff’s counsel’s billing and only makes broad assertions. As such, the Court does not find the 10 Commissioner’s argument to be supported. 11 B. Payment Directly to Counsel 12 Plaintiff’s motion requests payment of EAJA fees directly to counsel. Counsel is 13 not normally entitled to direct receipt of fees under the EAJA, so that the government may offset 14 the payment with the plaintiff’s debt. See Astrue v. Ratliff, 560 U.S. 586, 598 (2010). Since the 15 decision in Ratliff, many courts in this district have authorized payment of fees under the EAJA 16 directly to Plaintiff’s counsel. See e.g., Nobles v. Berryhill, 2017 U.S. Dist. LEXIS 172075 (E.D. 17 Cal. 2017), Alvarado v. Comm’r of Soc. Sec., 2018 U.S. Dist. LEXIS 118354 (E.D. Cal. 2018), 18 Blackwell v. Astrue, 2011 U.S. 35744 (E.D. Cal 2011). These payments directly to counsel are 19 based upon the government’s discretionary ability to reject assignment of any claims against it to 20 third parties under the Anti-Assignment Act. See United States v. Kim, 806 F.3d 1161, 1169-70 21 (9th Cir. 2015). This discretionary ability to reject assignment of claims “applies to an 22 assignment of EAJA fees in a social security appeal.” Yesipovich v. Colvin, 166 F.Supp.3d 1000, 23 1011 (N.D. Cal. 2015). Plaintiff’s counsel furnished his agreement with Plaintiff providing he 24 would be paid any EAJA fees directly, minus any offset due to any potential outstanding debt by 25 Plaintiff. See ECF No. 25-1. As the government has not challenged this assignment, it may still 26 offset any of Plaintiff’s debt, and may discretionally reject the assignment, EAJA fees will be 27 made payable to counsel. 28 / / / 1 If. CONCLUSION 2 Plaintiffs counsel has requested a total award sought of $11,310.57 in fees plus 3 | $420.88 in costs. As discussed above, the Court finds the requested fees and costs reasonable, and 4 | payment directly to Counsel appropriate. Plaintiff, therefore, be awarded a total of $11,310.57 in 5 | fees and $420.88 in costs, for a total of $11,731.42, which award shall be made payable to 6 | Plaintiff's counsel. 7 Accordingly, IT IS HEREBY ORDERED as follows: 8 1. Plaintiff's counsel’s motion for award of fees under the EAJA, ECF No. 9 || 24, is GRANTED. 10 2. Plaintiff is awarded $11,310.57 in fees plus $420.88 in costs, for a total of 11 || $11,731.42, payable to Plaintiffs counsel subject to any offset of debts. 12 || Dated: February 1, 2024 Ss.co_, 13 DENNIS M. COTA 14 UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28