(SS) Reyna v. Commissioner of Social Security, No. 1:2009cv01970 - Document 27 (E.D. Cal. 2011)

Court Description: ORDER GRANTING 22 Motion for Attorney Fees under 28 U.S.C. 2412 (D) signed by Magistrate Judge Sandra M. Snyder on 12/6/2011. (Sant Agata, S)
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(SS) Reyna v. Commissioner of Social Security Doc. 27 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 PABLO REYNA, 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. 22) Defendant. 14 / 15 Plaintiff moves the Court to grant attorneys’ fees of $13,082.78 under the Equal Access 16 to Justice Act (28 U.S.C. § 2412 (d)) (“EAJA”). The Government objects to Plaintiff’s fee 17 request, contending that the requested fees are excessive and noting the duplicative time billed by 18 Plaintiff’s two attorneys. Having reviewed the motion and its supporting documentation, as well 19 as the case file, this Court reduces Plaintiff’s claim for attorneys’ fees to eliminate clerical tasks, 20 duplication of effort, and inflated billing, and orders the payment of fees totaling $7527.63. 21 I. Legal and Factual Background 22 Plaintiff applied for disability benefits based on multiple physical ailments and mental 23 retardation. After a prolonged passage through the agency that included an administrative 24 remand to the Administrative Law Judge (ALJ), the Commissioner denied Plaintiff’s application 25 for disability benefits. 26 On November 6, 2009, Plaintiff appealed the Commissioner’s decision to this Court. On 27 June 9, 2011, the Court concluded that the ALJ made a legal error in determining that Plaintiff’s 28 1 Dockets.Justia.com 1 mental retardation did not manifest itself before Plaintiff was 22 years old. As a result, the Court 2 reversed the Commissioner’s decision and remanded for payment of benefits. 3 On September 6, 2011, Plaintiff filed a motion for attorneys’ fees under the EAJA 4 totaling $11,108.17. On October 20, 2011, Plaintiff filed his reply brief as well as the 5 supplementary declaration of Mr. Wilborn, seeking to add eleven additional hours ($1974.61) to 6 the billing for time spent preparing the reply brief and certification for the motion. Thus, 7 Plaintiff’s total EAJA fee request totals $13,082.78. 8 II. 9 10 11 12 13 Attorneys’ Fees Under the EAJA 28 U.S.C. § 2412(d)(1)(A) provides: 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. 14 A prevailing party under the EAJA is one who has gained by judgment or consent decree 15 a material alteration of the legal relationship of the parties. Perez-Arellano v. Smith, 279 F.3d 16 791, 794 (9th Cir. 2002). 17 Under the EAJA, attorneys’ fees must be reasonable. 28 U.S.C. § 2412(d)(1)(A); Perez18 Arellano, 279 F.3d at 794. The amount of the fee must be determined based on the case’s 19 particular facts. Hensley v. Eckerhart, 461 U.S. 424, 429 (1983).1 The Court determines the fee 20 based on the number of hours reasonably expended on the litigation multiplied by a reasonable 21 hourly rate, and must provide a concise and clear explanation of the reasons for its determination. 22 Id. at 433, 437; Sorenson v. Mink, 239 F.3d 1140, 1145 (9th Cir. 2001). A court has wide latitude 23 in determining the number of hours reasonably expended and may reduce the hours if the time 24 claimed is excessive, redundant, or otherwise unnecessary. Cunningham v. County of Los 25 Angeles, 879 F.2d 481, 484 (9th Cir. 1988), cert. denied, 493 U.S. 1035 (1990). The court has the 26 27 1 28 Abrogated on other grounds by Texas State Teachers Ass’n v. Garland Independent School District, 489 U.S. 782 (1989); Passantino v. Johnson & Johnson Consumer Products, Inc., 212 F.3d 493, 518 (9 th Cir. 2000). 2 1 obligation to exclude from the calculation any hours that were not reasonably expended on the 2 litigation. Spegon v. Catholic Bishop of Chicago, 175 F.3d 544, 550 (7th Cir. 1999) (internal 3 quotations omitted). 4 Plaintiff requests attorneys’ fees totaling $13,082.78, attributable to 74.45 attorney hours 5 bill for prosecuting Plaintiff’s appeal. Of the claimed hours, 14.7 are attributable to Ms. 6 Bosavanh; 59.75 to Mr. Wilborn. The Government objects to Plaintiff’s fee request, arguing that 7 the amount requested is unreasonable and noting unnecessary duplication of effort by the two 8 attorneys and Ms. Bosavanh’s inflated billing for reviewing documents. On its own motion, the 9 Court notes inappropriate billing of activities more properly delegated to clerical or 10 11 paraprofessional staff. A. 1. 12 13 Ms. Bosavanh’s Time Clerical and Paraprofessional Work Attorneys and paralegals may not legitimately bill for clerical or secretarial work. 14 Missouri v. Jenkins, 491 U.S. 274, 288 n. 10 (1989). “‘It is appropriate to distinguish between 15 legal work, in the strict sense, and investigation, clerical work, compilation of facts and statistics 16 and other work which can often be accomplished by nonlawyers but which a lawyer may do if he 17 has no other help available.’” Id., quoting Johnson v. Georgia Highway Express, Inc., 488 F.2d 18 714, 717 (5th Cir. 1974). “[T]he court should disallow not only hours spent of tasks that would 19 normally not be billed to a paying client, but also those hours expended by counsel on tasks that 20 are easily delegable to non-professional assistance.” Spegon, 175 F.3d at 553 (internal 21 quotations omitted). Clerical work may not be billed since it is part of a law firm’s overhead. 22 Jones v. Armstrong Cork Co., 630 F.2d 324, 325-26 (5th Cir. 1980). Cf., Nadarajah v. Holder, 23 569 F.3d 906, 921 (9th Cir. 2009) (reducing paralegal bills to account for erroneous billing of 24 clerical work performed by paralegal). 25 26 First, the Court finds that nearly all of the 1.3 hours billed on November 6, 2009, to prepare, review, and electronically file the complaint, IFP,2 and related documents was work 27 2 28 The November 6, 2009 review of the motion to proceed in forma pauperis is listed twice on Mrs. Bosavanh’s time summary. 3 1 reasonably to be performed by an experienced legal secretary. While the Court acknowledges 2 that Ms. Bosavanh likely would review these documents before their filing with the Court, all of 3 the listed documents are boilerplate forms to be completed by the word processor inserting 4 relevant information, an appropriate clerical task. Similarly, clerical staff would likely perform 5 the actual filing of the documents. The Court reduces this line item to .2 hours, sufficient time to 6 review these brief documents before returning them to staff for filing.3 7 Second, Ms. Bosavanh billed one hour on November 16, 2009, to prepare documents and 8 serve three government defendants; electronically file the proof of service; and to prepare the 9 consent to a magistrate judge. Even though Ms. Bosavanh may deem it necessary to perform a 10 final review of her staff’s work and bill accordingly, the tasks themselves are secretarial or 11 paralegal work. The Court reduces this item to .1 hours. 12 In addition, the Court notes that the extreme lack of detail of the Ms. Bosavanh’s time 13 statements makes it impossible for the Court to analyze the nature of the repeated entries of 14 “teleconference with client.” Such nebulous entries provide no clue whether the purpose of the 15 telephone call reasonably required it to be handled by an attorney or whether the purpose was one 16 that could appropriately and economically have been handled by other staff, for example, a 17 reminder to return documents. The judges of this Court have repeatedly instructed Ms. Bosavanh 18 to provide time records that are sufficiently detailed to allow evaluation of each entry’s propriety. 19 She has not complied. The Court reduces the time attributable to the telephone calls by one-half, 20 that is by 1.0 hours. 21 Similarly, Ms. Bosavanh’s vague October 16, 2009 entry, “Draft and review documents 22 to mail to client,” provides no clue that this entry refers to anything other than compiling and 23 mailing standard materials, such as a retainer agreement, questionnaires, or informative or 24 educational materials, that would typically be dispatched to a new client at this point in a social 25 security appeal. Such correspondence is properly treated as overhead, billable neither to a client 26 or to an adversary in a fee application. In the absence of sufficient detail to identify the nature of 27 3 28 The Court does not know whether or not Ms. Bosavanh employs staff to assist her in her law practice. It does not matter. An attorney may not bill attorneys’ fees for performing clerical work. 4 1 the correspondence, this entry is disallowed. 2 /// 3 2. Reviewing of Documents 4 The Commissioner criticizes Ms. Bosavanh’s billing of a minimum of .1 hour each time 5 she reviews a document or item of correspondence, no matter how perfunctory the review. For 6 example, confirming that a document has been posted on the Court’s docket, checking a return 7 receipt for certified mail, or confirming that the Court has granted the client permission to 8 proceed in forma pauperis requires no more than a glance. The cumulative effect of the many 9 individual entries greatly inflates the billed time. In this case, the entries include: 10 11 12 13 14 11/06/09 11/09/09 11/09/09 11/09/09 12/02/09 17 12/15/09 1/14/10 2/09/10 3/16/10 4/22/10 7/08/10 18 7/08/10 19 8/12/10 20 8/12/10 21 10/21/10 6/10/11 15 16 Receive and review court docket entry Review court documents Receive and review court order granting motion to proceed IFP Receive and review order granting IFP motion, summons, scheduling order, and related documents Review return receipt from US Attorney and Attorney General Review return receipt from Commissioner Review consent to U.S. Magistrate by OGC Review court notice re: designation of counsel for service Receive and review notice of lodging of transcript Review document for mailing to client Receive and review court docket re: stipulation and proposed order for extension of time requested by OGC Receive and review court order signed by judge re: extension of time Receive and review court docket re: stipulation and proposed order for extension of time requested by OGC Receive and review court order signed by judge re: extension of time Review documents to mail to client Review documents to mail to client .1 .2 .1 .4 .1 .1 .1 .1 .1 .1 .1 .1 .1 .1 .1 .1 22 23 24 25 26 The lack of detail in each entry raises further questions regarding the nature of the work performed. The Court reduces the time billed for review from 1.9 hours to .5 hours. 3. Duplicative Time Counsel fees should not include excessive, redundant, or otherwise unnecessary time such 27 as that attributable to the supervision or correction of a junior attorney. See Hensley, 461 U.S. at 28 434. An attorney submitting a fee request should exercise the same billing judgment that he or 5 1 she would use in preparing a bill for submission to the client, omitting ill-used or unnecessary 2 time. Id. 3 In this case, Ms. Bosavanh delegated the process of researching and writing Plaintiff’s 4 confidential letter and subsequent briefs to Mr. Wilborn. As a result, even though she has the 5 professional responsibility to review Mr. Wilborn’s work before signing the prepared briefs, she 6 may not bill for time that duplicates Mr. Wilborn’s activities in preparing these documents. Ms. 7 Bosavanh has previously been advised that this duplicative work is not compensible under the 8 EAJA. See Fontana v. Astrue, 2011 WL 2946179 (E.D.Cal. July 21, 20011) (No. 1:10-cv-0932- 9 DLB); Stairs v. Astrue, 2011 WL 2946177 (E.D. Cal. July 21, 2011) (No. 1:10-cv-0132-DLB); 10 VonBerckefeldt v. Astrue, 2011 WL 2746290 (E.D. Cal. July 14, 2011) (No. 1:09-cv-01927- 11 DLB); Roberts v. Astrue, 2011 WL 2746715 (E.D. Cal. July 13, 2011) (No. 1:09-cv-01581- 12 DLB). Accordingly, the Court disallows 1.2 hours billed for Ms. Bosavanh to receive and check 13 transcript contents (March 16, 2010) and .5 hours billed for Ms. Bosavanh to review the 14 Commissioner’s brief (August 19, 2010) since Mr. Wilborn needed to review those documents in 15 preparation for writing Plaintiff’s briefs. 16 4. Preparation of Fee Request 17 On September 4, 2011, Ms. Bosavanh billed 1.5 hours to “[p]repare EAJA fee time 18 documents and proposal.” This perfunctory entry provides little insight into the activities 19 performed to support the claim. An attorney’s time records are properly compiled 20 contemporaneously with their performance. Since an attorney cannot charge his client for 21 overhead, such as maintaining time records, time spent accumulating time records is not 22 compensible. See Copeland v. Marshall, 641 F.2d 880, 891 (D.C. Cir. 1980) (“Hours that are 23 nor properly billed to one’s client also are not properly billed to one’s adversary pursuant to 24 statutory authority”). 25 While an attorney’s review of time records to eliminate duplicative or excess billing, and 26 to eliminate any language that would compromise attorney-client confidentiality is appropriately 27 compensible, there is little evidence that Ms. Bosavanh conducted such an exercise, particularly 28 in light of the almost total lack of detail in the billing summary and the nearly identical time 6 1 records submitted in her many EAJA claims with this Court. Ms. Bosavanh continues, in case 2 after case, to include the same entries that have been disallowed in prior cases. And she 3 continues to resist court direction to more fully detail the billing entries to permit the Court and 4 her adversary to accurately evaluate her time claims. 5 Finally, just as was the case for the documents initiating this action, other than the time 6 records themselves, the other documents comprising the EAJA fee proposal consisted of word 7 processed documents capable of being competently prepared by a legal secretary with Ms. 8 Bosavanh’s supervision. 9 10 The Court reduces the time allocated to preparation of the EAJA proposal and time records to one hour. 5. 11 12 Fees Payable to Ms. Bosavanh Although this Court has reduced time claimed for review of the documentation relating to 13 the parties’ agreement to extend time for the Commissioner’s briefing, it will allow in full the .1 14 hour billed for Ms. Bosavanh’s determination to agree to the Commissioner’s request for an 15 extension. The Court also allows the 2.2 hours billed for Ms. Bosavanh’s review of the briefs 16 prepared by Mr. Wilborn. 17 The Court grants Ms. Bosavanh attorneys’ fees for 6.3 hours of work, allocated 2.5 hours, 18 2009 ( initial analysis,10/1; e-mail to Wilborn, 10/16); 2.8 hours, 2010 (document review; 19 extension, 7/8; and review of Mr. Wilborn’s work product); and 1.0 hour, EAJA application, 20 2011, representing fees of $430.60, 2009; $490.00, 2010; and $179.51, 2011. Total fees 21 allocated to Ms. Bosavanh are $1100.11. 22 23 24 B. Mr. Wilborn’s Time 1. Preparation of Confidential Letter Brief and Opening Brief Mr. Wilborn billed 22.75 hours for his preparation of Plaintiff’s confidential letter brief 25 (8.25 hours) and opening brief (14.5 hours). The opening brief being the linchpin of a social 26 security appeal, 23 hours is not excessive per se. But when an attorney who represents himself to 27 be a former administrative judge for the Social Security Administration and the author of a Social 28 Security treatise spends approximately three working days preparing these briefs, the expected 7 1 result is a concise and focused brief4 that clearly provides the information necessary to enable a 2 court to make a decision favorable to the claimant. The opening brief in this case did not meet 3 these expectations. Instead, the brief consisted of a confused laundry list of ten claims with little 4 legal expertise applied to identify and winnow the weak arguments, to emphasize the strong 5 ones, to separate the material facts from the mass of the agency record, or to discuss relevant 6 precedent in detail. See, e.g., Helene S. Shapo, Marilyn R. Walter, and Elizabeth Fajans, Writing 7 and Analysis in the Law at 396 (Thomson/Foundation Press 2008). See also Antonin Scalia and 8 Bryan A, Gardner, Making Your Case at 22-23 (Thomson/West 2008) (“Scattershot argument is 9 ineffective. It give the impression of weakness and desperation, and it insults the intelligence of 10 the court.”). Plaintiff’s brief misrepresented the hearing decision and never addressed the legal 11 criteria for a claimant’s establishing the onset of mental retardation before age 22. Mr. Wilborn concluded that the ALJ “failed to articulate any basis for finding that 12 13 Plaintiff’s impairments were not ‘equal’ to a listed impairment.” Doc. 13 at 9. In fact, the ALJ 14 carefully set forth his reasoning in concluding that Plaintiff did not meet the requirements of 15 listing 12.05: I considered Mr. Reyna’s mental impairment under listing 12.05. Mental retardation refers to significantly subaverage general intellectual functioning with deficits in adaptive functioning initially manifested during the developmental period; i.e., the evidence demonstrates or supports onset of the impairment before age 22. 16 17 18 The required level of severity for this disorder is met when the requirements in paragraphs A, B, C, or D are satisfied. 19 20 ***** 21 24 The requirements in paragraph C are not met because, although [Plaintiff] does have a valid verbal, performance, or full scale IQ of 60 through 70 and a physical impairment imposing an additional and significant work-related limitation of function, the record does not show his deficits in adaptive functioning initially manifested themselves before Mr. Reyna attained age 22. Mr. Reyna testified only that he was in special education and completed the eighth grade. 25 Doc. 12-3 at 21. 22 23 26 /// 27 4 28 Note that Mr. W ilborn suggests that reasonable attorneys’ fees could be estimated by determining the typical number of hours needed to write one page, then multiplying by the number of pages in the brief. 8 1 The Court reads this portion of the hearing decision at presenting a clear legal question: If 2 a claimant demonstrates that he attended special education classes and left school in the ninth 3 grade, has he established onset before age 22? Having carelessly read the hearing decision, 4 Wilborn provided the Court with no legal precedent addressing the nature of proofs required to 5 prove the onset of mental retardation before age 22. When the Court itself investigated the legal 6 requirements for a plaintiff’s proving onset before age 22, it quickly found clear precedent that 7 Plaintiff had proved onset before age 22 and prepared a brief (ten-page) opinion finding that the 8 ALJ erred at step 3 of the disability analysis and that Plaintiff had demonstrated satisfaction of 9 the listing requirements. The extended and cumbersome analysis of the opening brief was 10 unnecessary and wasted the time of the Court and both parties. 11 The opening brief argued that Plaintiff had proved his disability based not on legal 12 precedent, but on the criteria for a psychological diagnosis pursuant to the Diagnostic and 13 Statistical Manual. See American Psychiatric Association, Diagnostic and Statistical Manual of 14 Mental Disorders at 43 (4th ed., Text Revision 2000). Thus, while Plaintiff re-emphasized the 15 factual evidence that he contended proved timely onset of his intellectual disability, he provided 16 no basis whatsoever for the Court to conclude that the ALJ had wrongly rejected that evidence in 17 determining whether Plaintiff established legally cognizable onset before age 22. Instead, the 18 opening brief argued that (1) the ALJ somehow added unjustified requirements to the listing, as 19 the ALJ did in evaluating the claimant’s arthritis in Pitzer v. Sullivan, 908 F.2d 502, 505-06 (9th 20 Cir. 1990), and that (2) Plaintiff’s combined impairments are so severe as to functionally, rather 21 than literally, satisfy the requirements of Listing 12.05. This analysis, set forth in claims B and 22 C, was not helpful. 23 Having concluded that the appeal could be resolved at step three, the Court did not 24 consider Plaintiff’s remaining eight claims, which alleged that (A) the ALJ erred in referring to 25 Plaintiff’s disability as borderline intellectual functioning rather than mental retardation; (D) the 26 ALJ failed to comply with rules and regulations governing evaluation of mental impairments; (E) 27 the ALJ’s finding that Plaintiff had limited education was not supported by substantial evidence; 28 (F) the vocational expert testimony did not constitute substantial evidence due to the ALJ’s 9 1 omission of certain limitations; (G) the ALJ improperly rejected the testimony of Dr. Shaikha 2 and Dr. Hernandez; (H) the ALJ improperly rejected Plaintiff’s allegations; (I) the ALJ failed to 3 address the lay testimony; and (J) the proper disposition of the case is a remand for payment of 4 benefits. 5 In determining an award of attorneys’ fees, “the most critical factor is the degree of 6 success obtained.” Hensley, 461 U.S. at 436. In Hensley, the Court sought “to clarify the proper 7 relationship of the results obtained to an award of attorney’s fees.” Id. at 432. If the plaintiff has 8 obtained excellent results, his or her attorney ordinarily should receive the full compensatory fee, 9 consisting of all hours reasonably expended on the litigation. Id. at 435. But if the plaintiff has 10 achieved only partial or limited success, compensation for the full amount of the attorney’s time 11 may be excessive even if the attorney presented claims that were nonfrivolous and raised in good 12 faith. Id. at 436. “Congress has not authorized an award of fees whenever it was reasonable for a 13 plaintiff to bring a lawsuit or whenever conscientious counsel tried the case with devotion or 14 skill.” Id. 15 Assessing fees claimed in a complex civil rights case in which the plaintiffs prevailed on 16 only some of their claims, the Hensley Court recognized that despite the number of attorney 17 hours involved in prosecuting such a case, the fact that the plaintiff prevailed may not be 18 conclusive on the award of attorney fees. Id. Where an award of the requested fees would 19 clearly be excessive, “nor precise rule or formula exists” to determine the appropriate award of 20 attorneys’ fees. Id. A district court may elect either to identify specific time that must be 21 eliminated or simply reduce the fee award as a whole to address the limited success. Id. The 22 decision of how to proceed is entrusted to the district court’s discretion. Id. The Court has the 23 responsibility to discount any “[e]xorbitant, unfounded, or procedurally defective fee 24 applications” to ensure that the fee award is reasonable. Commissioner, I.N.S. v. Jean, 496 U.S. 25 154, 163 (1990). 26 27 28 A district court’s assessment of the “degree of success” achieved in a case is not limited to inquiring whether a plaintiff prevailed on individual claims . . . . Both “the quantity and quality of relief obtained,” as compared to what the plaintiff sought to achieve as evidence in her complaint, are key factors in determining the degree of success achieved . . . . Indeed, this comparison “promotes the court’s 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 ‘central’ responsibility to ‘make the assessment of what is a reasonable fee under the circumstances of the case.’” Adorno v. Port Authority of New York and New Jersey, 685 F.Supp.2d 507, 513 (S.D. N.Y. 2010), quoting Barfield v. New York Health & Hosp. Corp., 537 F.3d 132, 152 (2d Cir. 2008). Substantial portions of time, such as that required to initially review the agency record, must be allocated in any case. Unfortunately, the Court is unable to identify specific time to be eliminated since the block-billing format that Mr. Wilborn uses does not identify the specific time spent on any discrete element of the briefs’ preparation. See Hensley, 461 U.S. at 437 (“The applicant . . . . should maintain billing records in a manner that will enable a reviewing court to identify distinct claims”). As a result, the Court’s only alternative is to reduce the fee award as a whole to a reasonable allowance. The Court will allow sixteen hours for preparation of the confidential and opening briefs. 2. Preparation of Reply Brief Mr. Wilborn billed 24.5 hours to preparation of the reply brief. He attributed the remarkable time spent on the reply brief to his efforts to discover and exploit legal and factual errors in the Commissioner’s brief. He apparently found a good number since, at 37 pages, Plaintiff’s reply brief is two-and-a-half times the length of the Commissioner’s brief. While the Court appreciates the importance of replying to the Commissioner’s brief, the reply brief is overlong and the amount of time spent preparing it is clearly excessive and unreasonable. The Court will allow twelve hours for preparation of the reply brief. 3. Preparation of EAJA Fee Application Plaintiff requests fees for 1.5 hours for Mr. Wilborn’s preparation of the EAJA application, memorandum, and supporting documents, including Mr. Wilborn’s declaration of his time and qualifications. He also requests eleven hours of fees for the fourteen hours Mr. Wilborn spent preparing the reply brief and supplemental declaration. Reasonable time spent in preparing an EAJA fee motion is compensable. Atkins v. Apfel, 154 F.3d 986, 989 (9th Cir. 1998). The 1.5 hours requested for Mr. Wilborn’s initial preparation of the supporting brief and his own declaration is reasonable and will be granted. Mr. Wilborn’s request for eleven hours of 28 11 1 time for preparing Plaintiff’s 25-page reply memorandum and a seven-page declaration further 2 justifying the time billed in this “complex” social security case is clear overreaching, however. 3 “A request for attorney’s fees should not result in a second major litigation.” Hensley, 4 461 U.S. at 437. Once Plaintiff has presented his fee request and the Commissioner has had an 5 opportunity to set forth his objections to the requested fees, the Court is generally able to review 6 the record without further briefing. In the absence of some unexpected or unsupportable 7 argument in the Commissioner’s brief, extensive further briefing and argument is unnecessary 8 and inappropriately billed. 9 Plaintiff’s reply brief in this matter epitomizes such unnecessary briefing in that it both 10 restates arguments made in the initial motion brief and overanalyzes the fees awarded in other 11 EAJA motions. “The amount of the fee . . . . must be determined on the facts of each case.” 12 Hensley, 461 U.S. at 429. Earlier this year, Judge Beck noted the “growing animosity between the parties.” Belcher 13 14 v. Astrue (1:09-cv-1234-DLB), Doc. 41 at 5. In the reply brief in this motion, Mr. Wilborn’s 15 anger at the Commissioner’s opposition to his fee requests has blossomed in unprofessional ad 16 hominem attacks. Among other things, the reply brief accuses the Commissioner of “bad faith 17 harassment” (Doc. 26 at 4) and of “unabated” litigation against Bosavanh’s and Wilborn’s fee 18 requests (Doc. 26 at 10). Mr. Wilborn’s unbridled expression of animosity continues in his October 18, 2011 19 20 “declaration,” in which he accuses the Commissioner of “nitpicking” and bad faith, and Judge 21 Beck’s award in Stairs (2011 WL 2946177 (E.D. Cal. July 21, 2011) (No. 1:10-cv-0132-DLB)) 22 of “being out of the mainstream.” The “declaration” is an inappropriate and mean-spirited 23 diatribe which this Court will not countenance. “A declaration . . . . must contain only facts of 24 which the declarant has personal knowledge; legal argument and case citations are improper in a 25 declaration.” McCoy v. Evans, 2011 WL 3878374 at *13 (N.D. Cal. September 1, 2011) (No. C- 26 09-4768 SI (pr)). While an attorney might appropriately include additional factual information 27 within a declaration of services rendered in order to explain a particular departure from the time 28 /// 12 1 that might reasonably be expected for a particular task, Mr. Wilborn’s self-serving tirade, which 2 includes multiple derogatory attacks on the Commissioner, has no place in this Court. As the attorney of record in this action, Ms. Bosavanh shares in this misconduct through 3 4 her failure to review the reply documentation submitted in the EAJA motion and revise or 5 remove the declaration. The Court will order no compensation for the preparation of the 6 declaration. In addition, Mr. Wilborn and Ms. Bosavanh are hereby warned that including a 7 similar document in a future case will subject to both attorneys to sanctions. While a limited and succinct reply brief may have been desirable, the overlong and mean 8 9 spirited reply brief submitted in this case was unnecessary and the fees claimed for it are 10 unreasonable. Since Mr. Wilborn’s time summary precludes the Court’s linking specific times 11 with specific tasks, the Court must again allocate time by reducing the amount claimed as a 12 whole. In addition to the 1.5 hours allowed for preparation of the initial EAJA fee application, 13 the Court will allow seven hours, which is one-half of the time claimed to have been spent on the 14 reply brief and accompanying documents. 4. 15 Calculation of Fee Award 16 The Court grants Mr. Wilborn attorneys’ fees for 36.5 hours of work, allocated 28 hours, 17 2010, and 8.5 hours, 2011, representing fees of $4901.68, 2010; and $1525.84, 2011. Total fees 18 allocated to Mr. Wilborn are $6427.52. 19 III. Payment of Fees Directly to Attorney Attorneys’ fees payable under the EAJA (28 U.S.C. § 2412(d)) are appropriately payable 20 21 to the prevailing litigant, not his or her attorney. Astrue v. Ratliff, 130 S.Ct. 2521, 2524 (2010). 22 This is because that a fee award under the EAJA is subject to offset for application to federal 23 debts owed by the prevailing party under the Treasury Offset Program (31 U.S.C. § 3716). Id. 24 When the party has assigned his or her right to attorneys’ fees to his or her attorney, the 25 government may ultimately direct the payment to the assignee if the prevailing party does not 26 owe a debt to the government. Id. at 2529. In this case, however, Plaintiff does not claim to 27 have exercised an assignment in favor of his attorneys. 28 /// 13 1 IV. Conclusion and Order In accordance with the foregoing, this Court AWARDS to Plaintiff attorneys’ fees under 2 3 the EAJA of $7527.63, allocated $1100.11 to Ms. Bosavanh and $6427.52 to Mr. Wilborn. This 4 amount is payable to Plaintiff in compliance with Ratliff, 130 S.Ct. at 2524. 5 6 IT IS SO ORDERED. 7 Dated: icido3 December 6, 2011 /s/ Sandra M. Snyder UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14