JOHNSON v. SAUL, No. 2:2019cv04098 - Document 20 (E.D. Pa. 2020)
Court Description: MEMORANDUM OPINION. SIGNED BY MAGISTRATE JUDGE RICHARD A. LLORET ON 6/19/20. 6/19/20 ENTERED AND COPIES E-MAILED.(amas, )
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JOHNSON v. SAUL Doc. 20 IN TH E U N ITED S TATES D ISTRICT COU RT FOR TH E EASTERN D ISTRICT OF PEN N SYLVAN IA D AVID J OH N SON , Plain tiff, v. AN D REW M. SAU L, Co m m is s io n e r o f S o cial Se cu rity, D e fe n d an t. : : : : : : : : : : : CIVIL ACTION N o . 19 -4 0 9 8 MEMORAN D U M OPIN ION Plaintiff David J ohnson has filed a Motion for Attorney’s Fees pursuant to the Equal Access to J ustice Act (“EAJ A”), ECF Doc. No. 17. The Com m issioner filed a response thereto, ECF Doc. No. 18 , challenging the am ount of the fees, but not challenging the Plaintiff’s entitlem ent to fees pursuant to EAJ A. The Plaintiff filed a Reply, ECF Doc. No. 19, opposing any reduction in fees, and requesting an additional $ 453.20 , representing 2.2 hours of tim e, for preparation of the reply. I have granted the Plaintiff’s m otion in part and ordered the Com m issioner to pay attorney’s fees pursuant to EAJ A to Plaintiff in the am ount of $ 6,190 .30 . The reasons for this award are set forth below. I. The Litigation. Plaintiff David J ohnson filed a com plaint against Andrew M. Saul, Com m issioner of Social Security, in Septem ber of 20 19. ECF Doc. No. 2. On J anuary 6, 20 20 , Mr. J ohnson filed his brief, through counsel David Cherm ol, Esq., raisin g two issues: (1) the case should be rem anded because the Adm inistrative Law J udge (“ALJ ”) failed to acknowledge and give appropriate weight to the treating physician’s opinion, and Dockets.Justia.com substituted her own lay opinion for that of the treating physician; and (2) the ALJ was not properly appointed under the Constitution at the tim e the hearing was conducted, requiring rem and for review by a different, properly appointed, ALJ . ECF Doc. No. 2 at page 2. Within weeks, the Third Circuit decided Cirko on behalf of Cirko v. Com m issioner of Social Security , holding in a m atter of first im pression, that exhaustion of an Appointm ents Clause claim is not required in SSA context, and claim ants whose cases were heard by ALJ ’s who were not properly appointed were entitled to new hearings before constitutionally appointed ALJ s. Cirko on behalf of Cirko v. Com m 'r of Soc. Sec., 948 F.3d 148 (3d Cir. 20 20 ). The hearing in Mr. J ohnson’s case was held in May 20 18, and the decision was filed on J uly 31, 20 18 . On J anuary 24, 20 20 , I entered judgm ent in favor of Mr. J ohnson and ordered the case rem anded for review by a Constitutionally appointed ALJ . ECF Doc. Nos. 12 and 13. The Com m issioner filed a notice of appeal on March 20 , 20 20 , but later withdrew that notice and the appeal was dism issed on April 16, 20 20 . ECF Doc. Nos. 14, 16. II. The Motion for Attorney’s Fees. Plaintiff filed a m otion for attorney’s fees pursuant to EAJ A on May 30 , 20 20 . ECF Doc. No. 17. Plaintiff sought paym ent for 32.2 hours of work, at the rate of $ 20 6 per hour, as the prevailing party. 1 Plaintiff included a Statem ent of Attorney Tim e Expended, docum enting work on the case. Plaintiff argued that the governm ent’s 1 The total sought by Plaintiff was $ 6,633.20 . 2 position was not substantially justified and n oted that the parties attem pted to work out a stipulation without success. Id. at 4. On J une 15, 20 20 , the Com m issioner filed a response in opposition to the m otion. ECF Doc. No. 18. The Com m issioner alleged that the fees requested were unreasonable, as defin ed in Hensley v. Eckhart, 461 U.S. 424, 433 (1983), and requesting a reduction in the total num ber of hours to just 16.6 hours. 2 The Com m issioner did not dispute either that fees were appropriate pursuant to EAJ A, or the rate of $ 20 6 per hour, which Plaintiff had calculated from the statutory am ount of $ 125.0 0 per hour based upon the Consum er Price In dex prepared by the Bureau of Labor an d Statistics. See www.bls.gov. The Com m issioner’s rationale for the requested reduction included argum ents that the num ber of hours should be reduced because Plaintiff utilized “cut and paste” legal argum ents from other cases, 3 that Plaintiff’s counsel had billed an excessive am ount of tim e for “conferring” with other attorneys, and that the adm inistrative record in this particular case is not large, with m edical records totaling around 125 pages. The Com m issioner requested that the tim e for legal research should be reduced from 9.3 hours to 3.5 hours; that tim e to confer with fellow attorneys, revise the argum ent, an d edit the brief should be reduced from 3.9 to 1.5 hours, and the record review should be lim ited to 4 hours, reduced from the 10 .4 hours that the Com m issioner alleges were charged for this function. The total reduction urged by the Com m issioner is 14.6 hours. 2 The Com m issioner recited the num ber of hours requested by Plaintiff as 31.2 hours, which is short by one hour based upon m y calculation of the Plaintiff’s tim e set forth in his statem ent of tim e expended. 3 The Com m issioner appropriately noted that this practice is not wrong, but that it should result in “additional efficiencies.” ECF Doc. No. 18 at 5. 3 The Com m issioner points out that several of Plaintiff’s entries list various tasks under a single heading, constituting a “block bill.” The Com m issioner argued, “[l]arge blocks of tim e associated with a task(s) with only a generalized description are not specific enough to perm it an adequate basis for review and are subject to reduction,” citing Hensley , 461 U.S. at 433 and several opinions from the United States Court of Appeals for Veterans Claim s. ECF Doc. No. 18 at 6, n. 1. Plaintiff filed a reply on J une 16, 20 20 , ECF Doc. No. 19, objecting to all of the Com m issioner’s suggested reductions in tim e, calling the Com m issioner’s objection a “disturbing trend” of the Social Security Adm inistration to be “inten tionally unreasonable” in EAJ A negotiations, which are routinely settled without court intervention. Id. at 1. Plaintiff noted that his docum ented tim e of 32.2 hours was considerably below the firm ’s average of 43 hours. 4 Counsel argued that, because he was not involved at the adm inistrative level, his tim e in carefully reviewing the file, especially the transcript and ALJ ’s decision, was param ount to the representation, an d that it is the careful review, research, and discussion with his colleagues that results in the firm ’s higher-than-average success rate of 90 % of their appeals, with som e 50 % resulting in voluntary rem and by the Com m issioner. Plaintiff cited case law that found approxim ately 40 hours per case in Social Security m atters to be “fairly routine,”5 and urged that the fact-intensive nature of the issues pursued and ultim ately rejected m ade this particular case challenging, and sim ply “im possible” to have successfully pursued in 4 Although not stated by Plaintiff, it appears likely that this was due at least in part to the relatively sm all size of the adm inistrative record, and the resolution of the case prior to filing a reply. 5 Plaintiff cited, “Schulten v. Astrue, 20 10 WL 2135474, at *6 (N.D. Ill. 20 10 ) (collecting cases) (holding that 40 - 60 hours falls within the “perm issible range for social security cases, which has been noted to be 40 -60 hours”); Coppernoll v. Astrue, 20 0 9 WL 348 2120 (W.D. Wis. 20 0 9) (surveying cases and noting that 35 to 60 hours to be com m on and acceptable).” Id. at 3. 4 less than 17 hours, as urged by the Com m issioner. Additionally, Plaintiff argued that because the Cirko decision had not yet been announced, Plaintiff had no way of knowing that the case would be rem anded on this issue alone, m aking a com plete review of all other possible issues required, especially given the Social Security Adm inistration’s position on waiver and forfeiture of argum ents not raised. Id. at 3-4. Finally, Plaintiff’s counsel noted that although he routinely does not request fees for additional EAJ A litigation, he had expended an additional 2.2 hours on the preparation of the Reply brief and requested that $ 453.20 be added to the requested fee. Id. at 5. III. Resolution of the Fee Dispute. Resolution of EAJ A fee disputes routinely require a Solom on-like division of m iniscule am ounts of tim e, necessarily requiring a second-guessing of how m uch tim e is really needed to an alyze and appropriately charge or defend a given action, in order to determ ine if the fee requested is “reasonable.” Therefore, the starting point for m y analysis is, does the total look “reasonable” or “unreasonable?” While Plaintiff cites to Schulten and Coppernoll, cases decided in other districts, for the proposition that 40 -60 hours is “reasonable,” see n.5, supra, in its reply, he also cites to a n um ber of additional cases in his original m otion in which district courts in the Third Circuit found charges com parable to those here to be reasonable. See e.g. Chonko v. Com m 'r of Soc. Sec. Adm in., 624 F. Supp. 2d 357, 360 (D.N.J . 20 0 8) (district courts have approved 20 – 40 hours of legal work in the average disability case, citing Harden v. Com m 'r Soc. Sec. Adm in., 497 F.Supp.2d 1214, 1215– 16 (D.Or.20 0 7); Pribek v. Sec'y , Dep't of Health & Hum an Servs., 717 F.Supp. 73, 75 (W.D.N.Y.1989)); Supplee v. Colvin, 20 13 WL 5178 971 (E.D. Pa. 20 13) (awarding EAJ A fees in the am ount of $ 9,900 .0 0 for 55.0 hours expended and discussing how this fee request was m ore than reasonable). 5 I do not find the overall am ount of fees requested in this case to offend the standard of reasonableness to be utilized in EAJ A awards. I am m ostly unpersuaded by the Com m issioner’s argum ents that because the record was not as lengthy as som e, and there were only two argum ents ultim ately advanced, that this case could therefore have been prepared on a shoestring. The Com m issioner has not convinced m e that an unreasonable am ount of tim e was spent in reviewing the file or in preparing the brief. Additionally, I disagree that tim e spent in conference with fellow attorneys, which results in strategic decisions requiring rewrites or editing, is tim e wasted. Chonko, 624 F. Supp. 2d at 361 (“lawyers routinely spend m uch tim e working together, and this sort of team work can often save as m uch tim e as it adds.”). Reducing by n early half a num ber that appears reasonable, therefore, is not appropriate in this case. Moving from the general to the specific, however, there is one point raised by the Com m issioner that I do find persuasive. I note that the Plaintiff’s statem ent of fees does contain several entries that contain blocks of tim e of several hours, with m any tasks listed. This would appear to qualify as “block billing,” which is disfavored. Hensley requires adequate docum entation by the prevailing party in order to obtain an award for all of the requested fees. Id., 461 U.S. at 433. “Large blocks of tim e associated with either m any tasks or a single task with only generalized descriptions such as ‘research’ or ‘conference’ are not specific enough to perm it the Court an adequate basis for review and are subject to reduction.” Baldridge v. N icholson, 19 Vet. App. 227, 235 (20 0 5). I find that the Plaintiff has provided in sufficient explanation in the grouped billing for the following dates: 9/ 1/ 19; 12/ 17/ 19; 12/ 21/ 19; 12/ 23/ 19; and 1/ 5/ 20 . In each instance, however, it appears rather obvious to anyone who has ever practiced law in the private sector that each of these block bills contain one or two large tasks, an d then a series of 6 sm aller tasks that took only a few m inutes. 6 I find little to fault in this explanation. Because there are several such entries, however, I believe a slight adjustm ent to the am ounts charged, in total, for these five entries, is warranted because the entries do not contain specific explanations of the tim e expended. Such explanation would allow m e to determ ine if the am ount spent on, for exam ple, routine legal research, was reasonable. I will therefore reduce the total hours billed in just these six entries by twenty-five percent. This results in a reduction of just 4.35 hours (17.4 hours x .25 = 4.35). On the other hand, I agree with Plaintiff that he is entitled to a 2.2 hour increase in the total num ber of hours for his preparation of the reply brief on the EAJ A claim . Such fees are com pensable. Com m issioner, IN S v. Jean, 496 U.S. 154, 157 (1990 ). Additionally, I find that the appropriate rate of com pensation is $ 20 6 per hour, a num ber not challenged by the Com m issioner. Therefore, I will award a total of 30 .0 5 hours (34.4 hours – 4.35 hours = 30 .0 5 hours), m ultiplied by $ 20 6 per hour, for a total fee award of $ 6,190 .30 . 6 Plaintiff’s counsel provides one such exam ple in his reply, where he states, “m ost of the entries which SSA attacks are ones that involved the crucial m om ents in this case. The first tim e entry from 12/ 17/ 19 for 3.1 hours which SSA attacks did in volve checking the local rules and the docket entries. Those tasks took probably .2 or less. However, reviewin g the analysis of the case and beginning the review of the transcript represent an absolutely decisive m om ent in this case. It requires painstakin gly reviewin g every single jot and tittle in the ALJ ’s decision , a careful review of the prior notes on potential appeal issues, and generally setting the strategic course for the case.” ECF Doc. No. 19 at 2. 7 Because the Com m issioner has not challenged the form of paym ent requested in Plaintiff’s m otion for EAJ A fees, m y order instructs that the fees be paid as requested by Plaintiff. BY TH E COU RT: _ s/ Richard A. Lloret_ _ _ _ RICH ARD A. LLORET U .S. Magis trate J u d ge 8
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