Opinion
CASE NO. 2:15-cv-0122 JRC
10-15-2015
ASHLEY MCCAULEY, Plaintiff, v. CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration, Defendant.
ORDER ON MOTION FOR EQUAL ACCESS TO JUSTICE ACT FEES
This Court has jurisdiction pursuant to 28 U.S.C. § 636(c), Fed. R. Civ. P. 73 and Local Magistrate Judge Rule MJR 13 (see also Notice of Initial Assignment to a U.S. Magistrate Judge and Consent Form, Dkt. 6 ; Consent to Proceed Before a United States Magistrate Judge, Dkt. 7). This matter is before the Court on plaintiff's Motion for Equal Access to Justice Act Fees (see Dkt. 19). Defendant disputes plaintiff's motion (see Dkt. 22). This matter has been fully briefed (see Dkts. 19, 20, 21, 22, 23, 24).
After considering and reviewing the record, including plaintiff's Application for Fees, and the attached time sheet (see Dkt. 19), as well as the excellent results obtained by plaintiff's counsel, the Court concludes that plaintiff's fee request is unreasonable in part, and should be reduced by one hour (see Reply, Dkt. 23). Regarding the contested 5.7 hours reflecting time initially billed on May 15, 2015, plaintiff's reply and attached declaration demonstrate that the problematic itemized billing sheet initially submitted resulted from clerical error. These 5.7 hours were reasonably expended. However, defendant persuasively argues that one hour of time incurred by plaintiff's attorney was unnecessary, as it was incurred due to failure to follow the local rules.
Therefore, plaintiff's motion for fees pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412 ("EAJA") is granted in part in the amount of $5,254.14 representing attorney's fees for 27.7 hours incurred ($189.68/hour).
BACKGROUND and PROCEDURAL HISTORY
On June 18, 2015, this Court issued an Order reversing and remanding this matter for further consideration by the Administration based on the stipulation of the parties (see Dkt. 17; see also Dkt. 16). This matter was reversed pursuant to sentence four of 42 U.S.C. § 405(g) for further consideration of the medical evidence and of plaintiff's credibility (see id., pp. 1-2). Subsequently, plaintiff filed the motion for statutory EAJA attorney's fees considered herein, to which defendant objected on the grounds that the requested fees are unreasonable given the circumstances of this case (see Dkts. 19, 22). Plaintiff filed a reply (see Dkt. 23).
STANDARD OF REVIEW
In any action brought by or against the United States, the EAJA requires that "a court shall award to a prevailing party other than the United States fees and other expenses . . . . unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust." 28 U.S.C. § 2412(d)(1)(A).
According to the United States Supreme Court, "the fee applicant bears the burden of establishing entitlement to an award and documenting the appropriate hours expended." Hensley v. Eckerhart, 461 U.S. 424, 437 (1983). The government has the burden of proving that its positions overall were substantially justified. Hardisty v. Astrue, 592 F.3d 1072, 1076 n.2 (9th Cir. 2010), cert. denied, 179 L.Ed.2d 1215, 2011 U.S. LEXIS 3726 (U.S. 2011) (citing Flores v. Shalala, 49 F.3d 562, 569-70 (9th Cir. 1995)). Further, if the government disputes the reasonableness of the fee, then it also "has a burden of rebuttal that requires submission of evidence to the district court challenging the accuracy and reasonableness of the hours charged or the facts asserted by the prevailing party in its submitted affidavits." Gates v. Deukmejian, 987 F.2d 1392, 1397-98 (9th Cir. 1992) (citations omitted). The Court has an independent duty to review the submitted itemized log of hours to determine the reasonableness of hours requested in each case. See Hensley, supra, 461 U.S. at 433, 436-37.
DISCUSSION
In this matter, plaintiff clearly was the prevailing party because she received a remand of the matter to the administration for further consideration (see Order on Complaint, Dkt. 17; see also Dkt. 22, p. 2). In order to award a prevailing plaintiff attorney's fees, the EAJA also requires a finding that the position of the United States was not substantially justified. 28 U.S.C. § 2412(d)(1)(B). Defendant implicitly conceded that the government's position was not substantially justified, as defendant argues that plaintiff's recovery for attorney's fees should be reduced, not eliminated (see Defendant's Response to Plaintiff's EAJA Motion for Fees, Dkt. 22, p. 2). The Court agrees with defendant's implicit concession (see id.). This conclusion is based on a review of the relevant record. See Guitierrez v. Barnhart, 274 F.3d 1255, 1258-59 (9th Cir. 2001) (citations omitted).
The undersigned also concludes that no special circumstances make an award of attorney fees unjust. See 28 U.S.C. § 2412(d)(1)(A). Therefore, all that remains is to determine the amount of a reasonable fee. See 28 U.S.C. § 2412(b); Hensley, supra, 461 U.S. at 433, 436-37; see also Roberts v. Astrue, 2011 U.S. Dist. LEXIS 80907 (W.D. Wash. 2011), adopted by 2011 U.S. Dist. LEXIS 80913 (W.D. Wash. 2011).
Once the court determines that a plaintiff is entitled to a reasonable fee, "the amount of the fee, of course, must be determined on the facts of each case." Hensley, supra, 461 U.S. at 429, 433 n.7. According to the U.S. Supreme Court, "the most useful starting point for determining the amount of a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate." Hensley, supra, 461 U.S. at 433.
Here, plaintiff prevailed on the single claim of whether or not the denial of her social security application was based on substantial evidence in the record as a whole and not based on harmful legal error. When the case involves a "common core of facts or will be based on related legal theories . . . . the district court should focus on the significance of the overall relief obtained by the plaintiff in relation to the hours reasonably expended on the litigation." See Hensley, supra, 461 U.S. at 435. The Supreme Court concluded that where a plaintiff "has obtained excellent results, his attorney should recover a fully compensatory fee." Id.
Because the Court concludes based on a review of the relevant evidence that the plaintiff here obtained excellent results, the Court will look to "the hours reasonably expended on the litigation," which, when combined with the reasonable hourly rate, encompasses the lodestar._See Hensley, supra, 461 U.S. at 435. Other relevant factors identified in Johnson, supra, 488 F.2d at 717-19 "usually are subsumed within the initial calculation of hours reasonably expended at a reasonably hourly rate." See Hensley, supra, 461 U.S. at 434 n.9 (other citation omitted); see also Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 70 (9th Cir. 1975) (adopting Johnson factors); Stevens v. Safeway, 2008 U.S. Dist. LEXIS 17119 at *40-*41 (C.D. Cal. 2008) ("A court employing th[e Hensley lodestar method of the hours reasonably expended multiplied by a reasonable hourly rate] to determine the amount of an attorney's fees award does not directly consider the multi-factor test developed in Johnson, supra, 488 F.2d at 717-19, and Kerr, supra, 526 F.2d at 69-70"); but see Goodwin v. Astrue, 2012 U.S. Dist. LEXIS 97651 at *10-*12, *14-*20 (W.D. Wash. 2012) (applying Johnson factors), adopted by 2012 U.S. Dist. LEXIS 97650 (W.D. Wash. 2012).
The Johnson factors are: (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, supra, 488 F.2d at 717-19) (citations omitted); see also United States v.Guerette, 2011 U.S. Dist. LEXIS 21457 at *4-*5 (D. Hi 2011) ("factors one through five have been subsumed" in the determination of a number of hours reasonably expended multiplied by a reasonable rate); but see City of Burlington v. Dague, 505 U.S. 557 (1992) (rejecting factor 6 of contingent nature of the fee). --------
As defendant does not object to plaintiff's requested hourly rate for her attorney's fees request, the gravamen of defendant's contentions here concern "the number of hours reasonably expended on the litigation" (see Dkt. 22). See also Hensley, supra, 461 U.S. at 433.
Defendant points out that plaintiff filed her Opening Brief on the same day that she filed a Motion to File Excess Pages for her Opening Brief, May 11, 2015, but that her attorney's itemized billing statement indicates time billed on May 15 for drafting and editing the Opening Brief, and on May 26 for revising and finalizing the Opening Brief (Dkt. 22, pp. 2-3; see also Dkt. 12, Dkt. 19-1, p. 1). Defendant argues that counsel could not have known on May 15 that the Opening Brief would need to be revised, as the Court denied plaintiff's Motion to File Excess pages on May 20, 2015, suggesting that "the itemized billing statement, at least for this entry, was reconstructed post hoc and not reflective of contemporaneous timekeeping, leading to inaccuracy" (id.; see also Dkt. 14). Plaintiff contends that there was a clerical error (see Dkt. 23, p. 2).
Plaintiff's attorney initially billed for 5.7 hours on May 15, with a description of "Draft, edit opening brief" (see Dkt. 19-1, p. 1). As plaintiff already had submitted her Opening Brief on May 11, along with a Motion to File Excess Pages for her Opening Brief, it is appropriate for defendant to challenge this billing itemization on May 15. This Court did not deny plaintiff's motion until May 20, on the grounds that "the complexity of the issues and the length of the Administrative record do not justify an over-length brief and the motion is untimely" (Dkt. 14, p. 1 (footnote omitted)). Therefore, defendant's contention that plaintiff could not yet have known on May 15 of a need to edit the Opening Brief is valid. However, plaintiff has filed a reply with the following explanation:
The entry dated 5-15-2015 was for work that was performed on 5-11-2015 and was performed prior to Plaintiff's opening brief being filed on 5-11-2015. Plaintiff's counsel has verified this with contemporaneous records that were kept on 5-11-2015. There was a clerical error made in recording the date this work was performed on the Itemized Billing Statement that accompanied the Motion for EAJA Fees. This entry which described work as "Draft, edit opening brief" in the amount of 5.7 hours was actually performed on 5-11 2015 not 5-15-2015.(Dkt. 23, p. 2 (citing Declaration of D. James Tree)).
Importantly, plaintiff has submitted the declaration of her attorney (see Dkt. 24). In his declaration, plaintiff's attorney declares under penalty of perjury that regarding the entry for work initially dated May 15, this work was done on May 11, and that "the full 5.7 hours of work was performed prior to the opening brief being filed on 5-11-2015" (id. at p. 2). Plaintiff's attorney further declares that a "clerical error accounted for the wrong date on the Itemized Billing Statement [and that] Computer records made on 5-11-2015 confirm this work was performed on 5-11-2015 and records show no work was performed on 5-15-2015 (id.).
The Court concludes that plaintiff has adequately explained why the initial billing statement was incorrect (see id.). As plaintiff's attorney has declared that this 5.7 hours of time reflects actual time expended preparing the Opening Brief before it was filed, receiving payment for this time is appropriate and reasonable. Although it is possible that this time expended could have been reduced by initially drafting the brief within the proper page limits, based on a review of the itemized billing sheet, the Court concludes that inclusion of this time for the drafting of the Opening Brief is reasonable and allows plaintiff to receive a fully compensatory fee.
Defendant also challenges plaintiff's billing for 1.0 hour after the Court denied her motion to file her brief with excess pages (see Dkt. 22, p. 3). Defendant contends that if plaintiff's attorney had "either sought the Court's permission in advance of [the] filing date or complied with the established page limits in the first place, the extra expenditure of . . . . 1.0 hour on May 26, 2015 would have been unnecessary" (id.). Defendant requests that plaintiff's fee award be reduced by this 1.0 hour because the Commissioner should not have to compensate plaintiff's attorney for his time spent "correcting mistakes he could easily have avoided" (id.). Defendant's argument has merit and the Court finds it to be persuasive.
Plaintiff replies that after the Court denied plaintiff's motion for excess pages, "it took one additional hour to revise the brief to get it down to the page limit [and] [if] that work had been done on 5-11-2015 it would have still taken the additional one hour revision" (Dkt. 23, p. 2). Plaintiff contends that all of the hours billed "were necessary and do not include unnecessary additional time" (id.). However, the Court concludes that defendant is correct that plaintiff's attorney erred by not filing the request to file the over-length brief three days prior to the due date for the brief. See W.D. Wash Local Rules, Rule 7(f)(1). According to the local rules, motions to file over-length briefs "shall be filed as soon as possible but no later than three days before the underlying motion or brief is due . . . ." Id. However, plaintiff filed her motion on the due date for the Opening Brief. Had plaintiff followed the rules and if plaintiff had filed her request before finishing drafting a brief that was over-length, plaintiff's attorney could have drafted the brief initially to remain within the page limit and would not have had to edit the brief down after drafting it too long. Although plaintiff also argues that defendant has not been prejudiced because plaintiff did not bill for the motion for excess pages, that decision reflects appropriate billing reduction for unnecessary hours and is a different issue (see Dkt. 23, p. 2).
Plaintiff's itemized billing statement indicates that plaintiff's attorney expended 3.2 hours to "Review ALJ decision, legal research;" 7.1 hours to "Read transcript, outline brief;" 7 hours for "Legal research, draft statement of facts;" 5.7 hours to "Draft, edit opening brief;" and 1.0 hour to "Revise and finalize opening brief" (see Dkt. 19-1, p. 1). Based on a review of the time expended, the Court concludes that the total amount of time billed for the preparation of the Opening Brief, 24 hours, is a reasonable amount of time for drafting this Opening Brief once the one hour for paring down the brief is deducted.
Given the facts and circumstances of the matter herein, and based on plaintiff's briefing and her petition for fees, with the itemized time expenditures included, the Court concludes that the amount of time incurred by plaintiff's attorney in this matter is unreasonable and includes an hour of unnecessary time. See Hensley, supra, 461 U.S. at 435. Although plaintiff's attorney "has obtained excellent results, [and] [] should recover a fully compensatory fee," such does not include unnecessary time expended due to failure to follow the Court's local rules. Id.
Specifically, following a review of plaintiff's request, the Court concludes that plaintiff's request for attorney's fees in the amount of $5,443.82, representing 28.7 hours of work ($189.68/hour) should be reduced to $5,254.14, representing 27.7 hours of reasonable attorney time for this matter.
CONCLUSION
Based on the Equal Access to Justice Act, 28 U.S.C. § 2412, ("EAJA"), and the relevant record, it is hereby ORDERED that EAJA attorney's fees of $5,254.14 shall be awarded to plaintiff pursuant to the EAJA and consistent with Astrue v. Ratliff, 130 S.Ct. 2521, 2524, 2010 U.S. LEXIS 4763 at ***6-***7 (2010).
The Acting Commissioner shall contact the Department of Treasury after the Order for EAJA fees is entered to determine if the EAJA fees are subject to any offset. If it is determined that plaintiff's EAJA fees are not subject to any offset allowed pursuant to the Department of the Treasury's Offset Program, then the check for EAJA fees shall be made payable to D. James Tree, Esq., based on plaintiff's assignment of these amounts to plaintiff's attorney (see Fee Agreement, Dkt. 19, Attachment 2; Plaintiff's Declaration, Dkt. 21). If there is an offset, the remainder shall be made payable to plaintiff, based on the practice of the Department of the Treasury (see, e.g., Case No. 2:15-cv-122, Dkt. 22, p. 4). Any check for EAJA fees shall be mailed to plaintiff's counsel, D. James Tree, Esq., at Tree Law Office, 3711 Englewood Avenue, Yakima, WA 98902.
Dated this 15th day of October, 2015.
/s/_________
J. Richard Creatura
United States Magistrate Judge