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Martin Campbell v. Michael J. Astrue

June 21, 2011

MARTIN CAMPBELL,
PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY,
DEFENDANT.



The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge

ORDER GRANTING MOTION FOR ATTORNEYS' FEES UNDER 28 U.S.C. § 2412 (D) (Doc. 20)

Plaintiff moves the Court to grant attorneys' fees of $6197.00 under the Equal Access to Justice Act (28 U.S.C. § 2412 (d)) ("EAJA"). The Government objects to Plaintiff's fee request, contending that the requested fees are inflated by the inclusion of clerical tasks and by excessive and duplicative time spent on specific legal tasks. Having reviewed the motion and its supporting documentation, as well as the case file, this Court reduces Plaintiff's claim for attorneys' fees to eliminate clerical tasks and inflated billing, and orders the payment of fees totaling $3590.88.

I. Legal and Factual Background

On April 21, 2009, Plaintiff, by his attorney Henry Reynolds, filed a two-page form complaint appealing the Commissioner's decision denying disability benefits. Reynolds filed Plaintiff's opening brief on November 17, 2009; the Commissioner filed opposition on December 21, 2009. The Court entered judgment on January 7, 2011. On March 22, 2011, Plaintiff filed a motion for attorneys' fees under the EAJA totaling $6197.

II. Discussion

A. Amount of Fee Request

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.

A prevailing party under the EAJA is one who has gained by judgment or consent decree a material alteration of the legal relationship of the parties. Perez-Arellano v. Smith, 279 F.3d 791, 794 (9th Cir. 2002).

Under the EAJA, attorneys' fees must be reasonable. 28 U.S.C. § 2412(d)(1)(A); Perez-Arellano, 279 F.3d at 794. The Court generally starts with the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate, and must provide a concise and clear explanation of the reasons for its determination. Hensley v. Eckerhart, 461 U.S. 424, 433, 437 (1983); Sorenson v. Mink, 239 F.3d 1140, 1145 (9th Cir. 2001). A court has wide latitude in determining the number of hours reasonably expended and may reduce the hours if the time claimed is excessive, redundant, or otherwise unnecessary. Cunningham v. County of Los Angeles, 879 F.2d 481, 484 (9th Cir. 1988), cert. denied, 493 U.S. 1035 (1990). The court has the obligation to exclude from the calculation any hours that were not reasonably expended on the litigation. Spegon v. Catholic Bishop of Chicago, 175 F.3d 544, 550 (7th Cir. 1999) (internal quotations omitted).

Plaintiff requests attorneys' fees totaling $6197, attributable to 35.7 attorney hours expended in prosecuting Plaintiff's appeal. The Government objects to Plaintiff's fee request, citing excessive time spent on clerical tasks and excessive time spent on both the opening brief and preparation of the EAJA request.

Attorneys and paralegals may not legitimately bill for clerical or secretarial work. Missouri v. Jenkins, 491 U.S. 274, 288 n. 10 (1989). "'It is appropriate to distinguish between legal work, in the strict sense, and investigation, clerical work, compilation of facts and statistics and other work which can often be accomplished by non-lawyers but which a lawyer may do if he has no other help available.'" Id., quoting Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717 (5th Cir. 1974). "[T]he court should disallow not only hours spent of tasks that would normally not be billed to a paying client, but also those hours expended by counsel on tasks that are easily delegable to non-professional assistance." Spegon, 175 F.3d at 553 (internal quotations omitted). Clerical work may not be billed since it is part of a law firm's overhead. Jones v. Armstrong Cork Co., 630 F.2d 324, 325-26 (5th Cir. 1980). See also Nadarajah v. Holder, 569 F.3d 906, 921 (9th Cir. 2009) (reducing paralegal bills to account for erroneous billing of clerical work performed by paralegal).

Upon review, the Court finds the following entries to constitute impermissible clerical services:

4/23/09 prepare and mail summonses .5 4/24/09 prepare and mail materials to marshals service .8 4/26/09 notice ...


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