Campbell v. Commissioner of Social Security
Filing
23
ORDER Granting Motion for Attorneys' Fees Under 28 U.S.C. 2412(D) 20 , signed by Magistrate Judge Sandra M. Snyder on 6/21/2011. (Herman, H)
<![CDATA[
1
2
3
4
5
6
UNITED STATES DISTRICT COURT
7
EASTERN DISTRICT OF CALIFORNIA
8
9
MARTIN CAMPBELL,
10
Plaintiff,
11
12
CASE NO. 1:09-cv-00719-SMS
ORDER GRANTING MOTION FOR
ATTORNEYS’ FEES UNDER
28 U.S.C. § 2412 (D)
v.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
13
(Doc. 20)
Defendant.
14
/
15
Plaintiff moves the Court to grant attorneys’ fees of $6197.00 under the Equal Access to
16
Justice Act (28 U.S.C. § 2412 (d)) (“EAJA”). The Government objects to Plaintiff’s fee request,
17
contending that the requested fees are inflated by the inclusion of clerical tasks and by excessive
18
and duplicative time spent on specific legal tasks. Having reviewed the motion and its
19
supporting documentation, as well as the case file, this Court reduces Plaintiff’s claim for
20
attorneys’ fees to eliminate clerical tasks and inflated billing, and orders the payment of fees
21
totaling $3590.88.
22
I.
Legal and Factual Background
23
On April 21, 2009, Plaintiff, by his attorney Henry Reynolds, filed a two-page form
24
complaint appealing the Commissioner’s decision denying disability benefits. Reynolds filed
25
Plaintiff’s opening brief on November 17, 2009; the Commissioner filed opposition on
26
December 21, 2009. The Court entered judgment on January 7, 2011. On March 22, 2011,
27
Plaintiff filed a motion for attorneys’ fees under the EAJA totaling $6197.
28
1
1
II.
Discussion
2
A.
3
28 U.S.C. § 2412(d)(1)(A) provides:
4
Except as otherwise specifically provided by statute, a court shall award to a
prevailing party other than the United States fees and other expenses, in addition
to any costs awarded pursuant to subsection (a), incurred by that party in any civil
action (other than cases sounding in tort), including proceedings for judicial
review of agency action, brought by or against the United States in any court
having jurisdiction of that action, unless the court finds that the position of the
United States was substantially justified or that special circumstances make an
award unjust.
5
6
7
Amount of Fee Request
8
A prevailing party under the EAJA is one who has gained by judgment or consent decree
9
a material alteration of the legal relationship of the parties. Perez-Arellano v. Smith, 279 F.3d
10
791, 794 (9th Cir. 2002).
11
Under the EAJA, attorneys’ fees must be reasonable. 28 U.S.C. § 2412(d)(1)(A); Perez12
Arellano, 279 F.3d at 794. The Court generally starts with the number of hours reasonably
13
expended on the litigation multiplied by a reasonable hourly rate, and must provide a concise and
14
clear explanation of the reasons for its determination. Hensley v. Eckerhart, 461 U.S. 424, 433,
15
437 (1983); Sorenson v. Mink, 239 F.3d 1140, 1145 (9th Cir. 2001). A court has wide latitude in
16
determining the number of hours reasonably expended and may reduce the hours if the time
17
claimed is excessive, redundant, or otherwise unnecessary. Cunningham v. County of Los
18
Angeles, 879 F.2d 481, 484 (9th Cir. 1988), cert. denied, 493 U.S. 1035 (1990). The court has the
19
obligation to exclude from the calculation any hours that were not reasonably expended on the
20
litigation. Spegon v. Catholic Bishop of Chicago, 175 F.3d 544, 550 (7th Cir. 1999) (internal
21
quotations omitted).
22
Plaintiff requests attorneys’ fees totaling $6197, attributable to 35.7 attorney hours
23
expended in prosecuting Plaintiff’s appeal. The Government objects to Plaintiff’s fee request,
24
citing excessive time spent on clerical tasks and excessive time spent on both the opening brief
25
and preparation of the EAJA request.
26
Attorneys and paralegals may not legitimately bill for clerical or secretarial work.
27
Missouri v. Jenkins, 491 U.S. 274, 288 n. 10 (1989). “‘It is appropriate to distinguish between
28
2
1
legal work, in the strict sense, and investigation, clerical work, compilation of facts and statistics
2
and other work which can often be accomplished by nonlawyers but which a lawyer may do if he
3
has no other help available.’” Id., quoting Johnson v. Georgia Highway Express, Inc., 488 F.2d
4
714, 717 (5th Cir. 1974). “[T]he court should disallow not only hours spent of tasks that would
5
normally not be billed to a paying client, but also those hours expended by counsel on tasks that
6
are easily delegable to non-professional assistance.” Spegon, 175 F.3d at 553 (internal
7
quotations omitted). Clerical work may not be billed since it is part of a law firm’s overhead.
8
Jones v. Armstrong Cork Co., 630 F.2d 324, 325-26 (5th Cir. 1980). See also Nadarajah v.
9
Holder, 569 F.3d 906, 921 (9th Cir. 2009) (reducing paralegal bills to account for erroneous
10
11
12
13
14
billing of clerical work performed by paralegal).
Upon review, the Court finds the following entries to constitute impermissible clerical
services:
4/23/09
4/24/09
4/26/09
prepare and mail summonses
prepare and mail materials to marshals service
notice of submission of documents
15
16
17
18
.5
.8
.1
1.4 hours
Accordingly, the Court will reduce the amount of time requested by 1.4 for activities that
reasonably could have been managed by clerical personnel.
Plaintiff further requests 2 hours for preparation of the summons and complaint. The
19
two-page complaint is clearly a word-processing template into which the relevant information
20
was inserted. Although Plaintiff’s attorney would have had to instruct clerical personnel
21
regarding the proper form and appropriate inserts for Plaintiff’s case, the attorney should have
22
been able to perform his non-clerical functions in one-half hour or less. This entry will be
23
reduced by 1.5 hours.
24
As submitted to the Court, the substantive portion of the Plaintiff’s opening brief consists
25
of sixteen pages: nine of these pages summarize the factual and procedural history of the case.
26
Plaintiff claims 19 hours for its preparation, including 12 hours by attorney Murthy and 7 hours
27
by attorney Reynolds. Five hours of Reynold’s time was allocated to editing and amending
28
Murthy’s work. The attorneys’ review of the agency record was billed separately.
3
Counsel fees should not include excessive, redundant, or otherwise unnecessary time such
1
2
as those attributable to the supervision or correction of a junior attorney. See Hensley, 461 U.S.
3
at 434. An attorney submitting a fee request should exercise the same billing judgment that he or
4
she would use in preparing a bill for submission to the client, omitting ill-used or unnecessary
5
time. Id. Murthy’s time was excessive; Reynold’s time is attributed partly to editing Murthy’s
6
work. The Court will reduce Plaintiff’s request by seven hours.
The concept of billing judgment expressed in Hensley applies equally to the billing
7
8
entries associated with the Reynolds’ activities before Plaintiff retained his services. Although
9
reviewing the case is necessary in any event to proceed with prosecuting the case once the client
10
has retained the law firm, lawyers would not typically bill clients for entries such as “decide to
11
take [case]” or “send signup material to client,” or for multiple follow-up calls intended to set the
12
hook and reel in the business. These entries total 4.3 hours. Allowing time for reasonable
13
review of the case, the Court will reduce the requested fees by 2 hours.
Plaintiffs who are otherwise eligible for EAJA fees are entitled to recover for the time
14
15
reasonably spent in litigating their request for fees, without regard to whether or not the
16
government’s position with respect to the fee request was substantially justified. Commissioner,
17
Immigration and Naturalization Service v. Jean, 496 U.S 154, 160-66 (1990). Plaintiff requests
18
2.1 hours for preparation of an EAJA settlement letter, .5 hours for follow-up telephone calls and
19
e-mails, and 2.0 hours to prepare the fee application once the parties could not agree to a
20
settlement. The Commissioner objects, noting that the settlement letter he received consisted of
21
“a short four-sentence email from counsel with the billing sheet, attorney assistant declaration
22
and fee agreement attached.” Db2. The Commissioner adds that the fee application consisted of
23
the same materials presented for the settlement request plus boilerplate materials used in the fee
24
request in at least one prior case. The Court agrees that the time requested for preparation of the
25
EAJA was excessive and should be reduced to one hour.
26
III.
Plaintiff’s Assignment of Payment to Attorney
27
Attorneys’ fees payable under the EAJA (28 U.S.C. § 2412(d)) are appropriately payable
28
to the prevailing litigant, not his or her attorney. Astrue v. Ratliff, 130 S.Ct. 2521, 2524 (2010).
4
1
This is because that a fee award under the EAJA is subject to offset for application to federal
2
debts owed by the prevailing party under the Treasury Offset Program (31 U.S.C. § 3716). Id.
3
When the party has assigned his or her right to attorneys’ fees to his or her attorney, the
4
government may ultimately direct the payment to the assignee if the prevailing party does not
5
owe a debt to the government. Id. at 2529.
6
IV.
Conclusion and Order
7
As set forth above, the Court reduces Plaintiff’s fee request by 11.9 hours for 2009 for a
8
reduction of $2059.65 and by 3.1 hours for 2011 for a reduction of $546.47. The total reduction
9
in the requested fee is $2606.12.
Accordingly, this Court AWARDS to Plaintiff attorneys fees under the EAJA of
10
11
$3590.88. Plaintiff having assigned any EAJA payment to which he may become entitled, to his
12
attorney, Henry Reynolds, the Court ORDERS that any balance of the awarded fees remaining
13
after the offset of the fees to satisfy Plaintiff’s other federal obligations under the Treasury Offset
14
Program (31 U.S.C. § 3716) shall be paid directly to Henry Reynolds on Plaintiff’s behalf.
15
16
IT IS SO ORDERED.
17
18
Dated:
June 21, 2011
/s/ Sandra M. Snyder
UNITED STATES MAGISTRATE JUDGE
19
20
21
22
23
24
25
26
27
28
5
]]>
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?
