(SS) Leu v. Commissioner of Social Security

• Court: District Court, E.D. California
• Decided: December 8, 2022
• Docket: 1:21-cv-01057
• Status: Unknown

Opinion

1 UNITED STATES DISTRICT COURT 2 EASTERN DISTRICT OF CALIFORNIA 3 4 CATHY LEU, No. 1:21-cv-01057-GSA 5 Plaintiff, 6 v. ORDER GRANTING PLAINTIFF’S MOTION FOR EAJA ATTORNEY’S FEES 7 KILOLO KIJAKAZI, acting IN PART Commissioner of Social Security, 8 (Doc. 17) 9 Defendant. 10 I. Introduction and Procedural Background 11 On July 6, 2021 Plaintiff Cathy Leu (“Plaintiff”) sought judicial review of a final decision 12 of the Commissioner of Social Security (“Commissioner” or “Defendant”) denying her application 13 for disability insurance benefits and supplemental security income pursuant to Titles II and XVI, 14 respectively, of the Social Security Act. Doc. 1. The matter was stayed pursuant to General Order 15 615. Doc. 7. The Certified Administrative Record was filed on November 22, 2021 and the stay 16 was lifted. Doc. 9–10. 17 Plaintiff filed her motion for summary judgment on December 17, 2021. Doc. 12. 18 Defendant filed no response. Rather, the parties stipulated to remand the matter to the agency for 19 further proceedings. Doc. 14. Pursuant to the stipulation, judgment was entered for Plaintiff. Doc. 20 16. Plaintiff now moves for attorneys’ fees pursuant to the Equal Access to Justice Act (EAJA), 21 28 U.S.C. § 2412(d). Doc. 17. Plaintiff’s counsel initially sought $5,151.13 for 24.1 hours 22 expended pursuing the case to judgment, to which he added 8.2 hours for drafting the fee motion, 23 bringing the total to $6,903.79. Defense counsel opposed the request arguing the hours spent were 24 excessive. Doc. 18. Plaintiff’s counsel replied and sought compensation for an additional 4.3 hours 25 of time spent drafting the reply, bringing the total request to $7,822.88. Doc. 19. 26

28 1 II. Discussion

2 A. Substantial Justification

3 1. Legal Standard

4 A party seeking an award of fees and other expenses shall, within thirty days of final 5 judgment in the action, submit to the court an application for fees and other expenses which shows that the party is a prevailing party and is eligible to receive an award

6 under this subsection, and the amount sought, including an itemized statement from any attorney or expert witness representing or appearing in behalf of the party stating 7 the actual time expended and the rate at which fees and other expenses were computed. The party shall also allege that the position of the United States was not 8 substantially justified. Whether or not the position of the United States was 9 substantially justified shall be determined on the basis of the record (including the record with respect to the action or failure to act by the agency upon which the civil 10 action is based) which is made in the civil action for which fees and other expenses are sought. 11 28 U.S.C. § 2412(d)(1)(B). 12 13 A plaintiff appealing a denial of Social Security benefits need not be awarded benefits to be 14 considered a prevailing party. Shalala v. Schaefer, 509 U.S. 292, 300 (1993). A plaintiff who 15 obtains a remand order pursuant to sentence four of 42 U.S.C. § 405(g) is also considered a 16 prevailing party under the EAJA. Id. A prevailing party is entitled to a fee award when the position 17 of the United States was not substantially justified. See 28 U.S.C. § 2412(d)(1)(B). While the 18 prevailing party must only allege that the position of the United States was not substantially 19 justified, the United States must carry the burden of establishing substantial justification. See 28 20 21 U.S.C. § 2412(d)(1)(B); Scarborough v. Principi, 541 U.S. 401, 414 (2004). 22 “To establish substantial justification, the government need not establish that it was correct 23 or ‘justified to a high degree’ . . . only that its position is one that ‘a reasonable person could think 24 it correct, that is, has a reasonable basis in law and fact.’” Ibrahim v. DHS, 912 F.3d 1147, 1167 25 (9th Cir. 2019) (en banc) (quoting Pierce v. Underwood, 487 U.S. 552 (1988)). The substantial 26 justification standard is satisfied if there is a “genuine dispute” of fact or law, even if the court 27 28 ultimately rules against the government. See Pierce, 487 U.S. at 565. The determination of 1 substantial justification is within the discretion of the district court. Pierce v. Underwood, 487 U.S.

2 552 (1988); McDonald v. Sec'y of Health & Hum. Servs., 884 F.2d 1468, 1473 (1st Cir. 1989).

3 Pursuant to 28 U.S.C. § 2412(d)(2)(D) ‘“position of the United States’ means, in addition

4 to the position taken by the United States in the civil action, the action or failure to act by the agency 5 upon which the civil action is based . . .’” Thus, the substantial justification standard applies not 6 7 only to the underlying agency action in denying benefits, but also to the legal and factual positions

8 advanced by the government’s attorneys during the litigation.

9 2. Analysis 10 Plaintiff is a prevailing party having obtained a judgment pursuant to stipulation. There is 11 no contention or evidence that she is otherwise ineligible under 28 U.S.C. § 2412(d)(2)(B) based 12 on her assets. Substantial justification of the Defendant’s position is not at issue. A fee award is 13 therefore appropriate. 14 15 B. Fee Amount 16 1. Legal Standard 17 Having determined a fee award is appropriate, the Court must consider the reasonableness 18 of the fee request. See 28 U.S.C. § 2412(d)(2)(A). The Court has an “independent obligation for 19 judicial review of the reasonableness of the amount of fees sought under the EAJA regardless of 20 whether the request is opposed.” Douzat v. Saul, 2020 WL 3408706, at *1 (D. Nev. June 11, 2020), 21 citing Lucas v. White, 63 F. Supp. 2d 1046, 1060 (N.D. Cal. 1999). “This obligation is consistent 22 23 with Ninth Circuit precedent outside the EAJA context that similarly highlights the Court's duty to 24 review the reasonableness of a fee request.” Id, citing Gates v. Deukmejian, 987 F.2d 1392, 1401 25 (9th Cir. 1992) (in addressing request for fees under 42 U.S.C. § 1988, indicating that “the district 26 court is required to independently review [a] fee request even absent . . . objections”). 27 28 1 Under fee shifting statutes, the movant generally bears the burden of documenting hours

2 and establishing reasonableness of the fee request. See, e.g., Hensley v. Eckerhart, 461 U.S. 424,

3 434 (1983). Counsel is entitled to compensation for all work a reasonable and prudent lawyer

4 would undertake to advance her client’s interests. Moore v. Jas. H. Matthews & Co., 682 F.2d 830, 5 839 (9th Cir. 1982). 6 7 EAJA hourly rates are capped at $125.00 per hour plus annual cost of living adjustments

8 pursuant to the formula set forth in Thangaraja v. Gonzales, 428 F.3d 870, 876–77 (9th Cir. 2005),

9 and published electronically by the Ninth Circuit Court of Appeals. See 9th Cir. R. 39-1.6. The 10 rate set for 2021 was $217.54 per hour.1 Counsel seeks reimbursement at a rate of $213.74 per 11 hour. 12 2. Analysis 13 The pre-judgment and post-judgment portions of the fee request will be addressed 14 15 separately. Counsel seeks compensation for 24.1 hours of work to pursue the case to judgment. 16 Doc. 17-1. “Courts should generally defer to the ‘winning lawyer’s professional judgment as to 17 how much time he was required to spend on the case.’” See Costa v. Comm’r of Soc. Sec. Admin., 18 690 F.3d 1132, 1136 (9th Cir. 2012), quoting Moreno v. City of Sacramento, 534 F.3d 1106, 1112 19 (9th Cir. 2008)). 20 Some district courts decline to do a line-by-line review of the fee petition where the overall 21 number of hours expended was reasonable. Allen v. Berryhill, Case No. 17-cv-03384-SI, 2019 WL 22 23 343422 (N.D. Cal. January 28, 2019) (70.85 hours); Thompson v. Colvin (E.D. Cal., Apr. 17, 2015, 24 No. 2:12-CV-01850-AC) 2015 WL 1767733, at *2 (63.4 hours); Schneider v. Colvin (E.D. Cal., 25 Feb. 9, 2016, No. 1:14-CV-0034-SKO) 2016 WL 500595, at *4 (55.4 hours)). Other courts do 26 27 1 See United States Courts for the Ninth Circuit, Statutory Maximum Rates Under the Equal Access to Justice Act, 28 available at https://www.ca9.uscourts.gov/content/view.php?pk_id=0000000039 (last visited March 7, 2022). 1 conduct line-by-line reviews of fee petitions and deduct time sought for non-compensable work

2 and for certain time entry practices. See e.g., Henderson v. Comm'r of Soc. Sec., No. 1:20-CV-

3 0562 JLT, 2021 WL 2457540, at *3 (E.D. Cal. June 16, 2021) (eliminating time entries for

4 duplicative tasks); Mallard v. Berryhill, No. 1:17-CV-01212 - JLT, 2019 WL 2389506, at *3 (E.D. 5 Cal. June 6, 2019) (same); Neil v. Comm’r of Soc. Sec., 495 F. App’x 845, 847 (9th Cir. 2012) 6 7 (unpublished) (affirming reductions for clerical tasks, vague narratives, block billing, and use of

8 quarter-hour billing increments).

9 Defendant does not take issue with the time entry practices here or any non-compensable 10 work, such as clerical work. Nor are any such practices apparent after the Court’s review of the 11 billing entries. Doc. 17-1. Rather, Defendant contends that 24.1 hours was an excessive amount 12 of time to review a relatively short administrative record of 729 pages and to draft a 7-page motion 13 for summary judgment which, according to Defendant, “raised just two run-of-the-mill issues: 14 15 whether the administrative law judge erred by failing to (1) resolve an apparent inconsistency 16 between the vocational expert’s testimony and the Dictionary of Occupational Titles (DOT), and 17 (2) discuss or consider the medical opinion of Oscar Hernandez, M.D..” Resp. at 3, Doc. 18. 18 The Court disagrees. Granted, the administrative record and motion for summary judgment 19 here were both on the shorter end, and the issues therein were on the lower end of complexity. 20 Nevertheless, 24.1 hours is also on the lower end in terms of hours typically sought in Social 21 Security cases. As noted by the Ninth Circuit in Costa, 20 to 40 hours is the most common range 22 23 sought and granted. Costa, 690 F.3d at 1136. That is commensurate with the undersigned’s 24 experience as well for cases filed in this Court. 24.1 hours is appropriately on the lower end of that 25 range, and thus no reduction will be applied. 26 As to the amount of time spent litigating the motion for attorney fees, however, the request 27 in the Court’s opinion is excessive. Counsel seeks 8.2 hours for the motion for fees and 4.3 for the 28 1 reply, bringing the total amount of hours spent on the fee motion to 12.5 hours, compared to 24.1

2 hours to pursue the case to judgment. This would amount to a 50% increase in the total amount

3 sought for work expended in this case, and would match the approximately 12 hours of time

4 counsel spent researching, drafting and revising the initial motion for summary judgment according 5 to the billing entry. 6 7 A significant portion of counsel’s fee motion addressed routine matters such as prevailing

8 party status, eligibility, and substantial justification of the government’s position, none of which

9 are at issue. Counsel could have reasonably anticipated that Defendant would oppose the motion 10 based on the reasonableness of the amount of time expended, not whether Plaintiff was entitled to 11 a fee award generally. As Plaintiff’s counsel is well aware, the Court has no merits brief from the 12 Defendant and is in no position to address the substantial justification, or lack thereof, of 13 Defendant’s position. In short, counsel needn’t have spent any time on the issue of substantial 14 15 justification beyond quoting the standard and plainly stating that it’s not at issue, as the Court did 16 above. 17 Counsel also pre-emptively addressed the propriety of several minor billing entries ranging 18 from 0.3 to 0.6 hours, explaining why Counsel believes they were not clerical tasks that could be 19 delegated. Although the movant generally bears the burden of documenting hours and establishing 20 reasonableness of the fee request (See Hensley, 461 U.S. at 434), it seems a bit redundant and 21 excessive to compensate counsel for spending potentially as much (or more) time pre-emptively 22 23 defending the propriety of de minimis billing entries than he originally spent performing the actual 24 substantive work described in those entries. Counsel could have easily forgone this discussion and 25 raised the same in his reply in the event Defendant took issue with those line items, which 26 Defendant did not do. 27 28 1 In short, drafting the fee motion should have taken much less than 8.2 hours. As for the 4-

2 page reply, counsel did an admirable job of contesting Defendant’s arguments and case law

3 regarding the length of the administrative record and the complexity of the issues at bar, though 4.3

4 hours is still a bit excessive for a 4-page reply brief. 5 The Court recognizes that counsel has an incentive to thoroughly and persuasively brief the 6 7 motion to protect the right to collect an earned fee. But there is no justification here for increasing

8 counsel’s overall fee award by 50% for the time spent litigating the fee motion, particularly under

9 circumstances where counsel obtained the underlying judgment by stipulation. The 12.5 hours 10 sought to litigate the fee motion will be reduced to 6.5 hours. See Lopez v. Astrue, No. 1:10CV1012 11 AWI GSA, 2012 WL 2052146, at *5 (E.D. Cal. June 6, 2012), report and recommendation adopted, 12 No. 1:10-CV-01012 OWW, 2012 WL 2995486 (E.D. Cal. July 23, 2012) (reimbursing “6.5 hours 13 for the preparation of his billing sheets, the preparation of the EAJA application and for the related 14 15 Reply.”). 16 Finally, it is worth underscoring a practical consideration. Even if the Court had granted 17 Defendant the 11-hour requested reduction, when factoring in the time Plaintiff’s counsel sought 18 for litigating the fee motion, the total amount of the award would be roughly the same as Plaintiff 19 original request for working up the case. 20 In short, in cases such as this one where neither the amount sought, nor the requested 21 reductions thereto are particularly substantial, the process of litigating the fee motion tends to erode 22 23 any potential cost savings for the treasury. Such motions also unnecessarily occupy judicial and 24 attorney time which could be better spent working up other cases. The parties are encouraged to 25 make a good faith attempt to resolve minor fee disputes without Court involvement whenever 26 possible. 27 28 1 For the foregoing reasons, counsel will be awarded 24.1 hours for pursuing the case to

2 judgment, and an additional 6.5 for litigating the fee motion, bringing the total to 30.6 hours at a

3 rate of $213.74, which yields a fee award of $6,540.44.

4 III. Order 5 Accordingly, Plaintiff’s motion for attorney fees (Doc. 17) is granted in part. Fees in an 6 7 amount of $6,540.44 are awarded in favor of Plaintiff Cathy Leu and against Defendant Kilolo

8 Kijakazi, acting Commissioner of Social Security.

9 Fees shall be made payable to Plaintiff. The Department of the Treasury shall determine 10 whether Plaintiff owes a federal debt. If she does not, then the government shall cause the payment 11 of $6,540.44 in fees to be made directly to Plaintiff’s Counsel, Francesco Benavides, pursuant to 12 the assignment executed by Plaintiff (Doc. 17-2).2 13

14 15 IT IS SO ORDERED.

16 Dated: December 8, 2022 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 17

18 19 20 21 22 23 24 25 26 27

28 2 See Astrue v. Ratliff, 560 U.S. 586, 593, 597 (2010).