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Valentin Vallejo v. Michael J. Astrue


September 19, 2011


The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge


On July 15, 2011, the undersigned granted summary judgment in favor of plaintiff Valentine Vallejo (the "plaintiff") and remanded the matter to the Social Security Administration. (Dkt. No. 20.) Currently pending before the undersigned is plaintiff's Motion For An Award Of Attorney's Fees Pursuant To The Equal Access To Justice Act. (Dkt. No. 22.) Plaintiff seeks attorneys' fees at "full market rates." (Id. at 8-9.) Plaintiff argues that "market rate" fees are appropriate because his attorneys possessed "expertise in the area of Social Security overpayment waiver cases" and that this "distinctive knowledge" was necessary to the litigation of his case. (Id. at 6-8.)

Defendant Commissioner of the Social Security Administration (the "defendant") filed an opposition to plaintiff's pending motion. (Dkt. No. 26.) Defendant does not oppose plaintiff's entitlement to attorney's fees under the Equal Access to Justice Act ("EAJA"). (Dkt. No. 26.) However, defendant opposes plaintiff's request to receive attorneys' fees at the "market rate" and in excess of the statutory maximum stated within the EAJA. (Id. at 2-3.) Defendant contends that plaintiff is entitled to no more than $7,981.16. (Id. at 7-8.) Defendant also challenges certain fees which defendant describes as "excessive, duplicative, and otherwise not compensable." (Id. at 9-12.) When the so-called "excessive" fees are omitted, defendant argues that plaintiff is entitled to no more than $4,973.02. (Id. at 12.) Plaintiff filed a Reply in support of his motion and in response to defendant's opposition brief. (Dkt. No. 27.)

Because oral argument would not materially aid the resolution of the pending motion, the matter is submitted on the briefs and record without a hearing. Fed. R. Civ. P. 78(b); E.D. Local Rule 230(g). The undersigned has fully considered the parties' papers and the record in this case and, for the reasons that follow, the undersigned grants plaintiff's motion in part and denies it in part.*fn1


Plaintiff's case arose from his receipt of social security benefits overpayments.*fn2

An administrative law judge ("ALJ") found plaintiff was not without fault in causing the overpayments and denied plaintiff's request to waive the overpayments. Plaintiff initiated this action, and the undersigned ultimately granted plaintiff's motion for summary judgment and entered judgment in plaintiff's favor. (Dkt. No. 20.)

The issue in plaintiff's case was whether, after having timely reported his employment to the Social Security Administration ("SSA"), and after the SSA stopped paying plaintiff's Supplemental Security Income benefits but continued paying his Title II benefits, plaintiff knew or should have known that his continued receipt of Title II benefits was improper. 20 C.F.R. § 404.507. If plaintiff knew or should have known his continued receipt of Title II benefits was improper, his failure make afollow-up report to the SSA regarding these payments would amount to "fault" in connection with these overpayments, and plaintiff would be obligated to repay the overpaid amounts. (Dkt. No. 20 at 7.) If not at fault, plaintiff would be entitled to a "waiver" of his obligation to repay the overages. (Id.)

In a nutshell, because the "fault" determination in this particular case turned on what plaintiff knew or should have known during the period he was overpaid, Anderson v. Sullivan, 914 F.2d 1121, 1122 (9th Cir. 1990); 20 C.F.R. § 404.507, this case turned on the ALJ's credibility findings and the bases therefor. (Dkt. No. 20 at 7.)


The EAJA provides for attorney's fees to "prevailing parties" in social security actions under certain circumstances. 28 U.S.C. § 2412(d).*fn3 The EAJA authorizes federal courts to award attorneys' fees when a party prevails against the United States, although fee-shifting is not mandatory. Hardisty v. Astrue, 592 F.3d 1072, 1076 (9th Cir. 2010.)

Under the EAJA, the court "shall" award fees to the prevailing party 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). The government has the burden to demonstrate that "its position was substantially justified or that special circumstances exist to make an award unjust." Gutierrez v. Barnhart, 274 F.3d 1255, 1258 (9th Cir. 2001).

The text of the EAJA limits the hourly rate to be used in calculating attorney fee awards. 28 U.S.C. § 2412(d)(2)(A).*fn4 With cost-of-living increases, that hourly rate is $172.24 per hour for work completed in 2009, $175.06 per hour for work completed in 2010, and $179.51 per hour for work completed in 2011. Id. § 2412(d)(2)(A)(ii); Thangaraja v. Gonzalez, 428 F.3d 870, 876-77 (9th Cir. 2005) (explaining that cost-of-living increases are calculated by multiplying the $125 statutory maximum hourly rate by the annual average consumer price index figure for all urban consumers ("CPI-U") for the years in which the attorney's work was performed and dividing by the CPI-U figure for March 1996 (155.7), the effective date of the statutory maximum hourly rate).

Notwithstanding the limit on hourly fee rates that can be awarded under EAJA, EAJA also provides that "special factor[s]" may "justif[y] a higher fee." 28 U.S.C. § 2412(d)(2)(A). An award in excess of the statutory rate is only appropriate where "lawyers skilled and experienced enough to try the case are [not only] in short supply," but there is also limited availability of "attorneys having some distinctive knowledge or specialized skill needful for the litigation in question." Pierce v. Underwood, 487 U.S. 552, 573 (1988). The Ninth Circuit Court of Appeals has since clarified that, "[i]t is not enough, however, that the attorney possess distinctive knowledge and skills. Those qualifications warrant additional fees only if they are in some way needed in the litigation and cannot be obtained elsewhere at the statutory rate." Pirus v. Bowen, 869 F.2d 536, 542 (9th Cir. 1989). The Court of Appeals has thus distilled a two-prong test from Pierce: (1) the attorney must possess "distinctive knowledge and skills" and (2) the qualifications must be "in some way needed in the litigation and cannot be obtained elsewhere at the statutory rate." Id. The Ninth Circuit Court of Appeals has awarded "market rate" fees to attorneys specializing in complex Social Security litigation. Id. (awarding attorney fees in excess of EAJA's hourly limit in class action involving a "highly complex" area of the Social Security Act, specifically, the legislative history of the "widow's insurance" provisions of the Act); Garnes v. Barnhardt, No. C 02-4428 VRW, 2006 WL 249522, at *5-6 (N.D. Cal. Jan. 31, 2006) (unpublished) (awarding fees in excess of the EAJA statutory cap to counsel challenging the manner of the agency's application of the "fleeing felon" provision in a regulation, because "a typical social security disability practitioner would be unlikely to bring a case that involved challenging [the agency's] implementation of its own regulations as too complicated.")

An EAJA fee award must also be reasonable. Sorenson v. Mink, 239 F.3d 1140, 1145 (9th Cir. 2001). A party seeking fees under EAJA bears the burden of proving that the fees and hourly rate requested are reasonable. Hensley v. Eckerhart, 461 U.S. 424, 433-34 (1983); Aguilera v. Astrue, No. 08cv67 WQH (JMA), 2009 WL 1156510, at *2-3 (S.D. Cal. April 28, 2009) (unpublished) (citing Hensley). In determining whether a fee is reasonable, the court considers the hours expended, the reasonable hourly rate, and the results obtained. Hensley, 461 U.S. at 433-34; Atkins v. Apfel, 154 F.3d 986, 988 (9th Cir. 1998). "[E]xcessive, redundant, or otherwise unnecessary" hours should be excluded from a fee award, and charges that are not properly billable to a client are not properly billable to the government. Hensley, 461 U.S. at 434. A prevailing plaintiff is entitled to reasonable fees for the time expended in litigating the EAJA fees request. Commissioner, INS v. Jean, 496 U.S. 154, 165-66 (1990) (awarding EAJA fees for fee litigation); Kilbourne v. Comm'r of Soc. Sec., 2011WL 2495688, No. 09-6367-HA, at *5 (D. Or. June 23, 2011) (unpublished) (citing Jean and holding that plaintiff could supplement the fee request and seek EAJA fees for "reasonable time expended litigating this fee entitlement.")


A. Plaintiff Has Not Shown

That His Attorneys' Particular Expertise Was "Needed" In This Litigation, So EAJA's Hourly Fee Cap Applies Assuming without finding that plaintiff's attorneys possess "distinctive knowledge and skill" as they declare (Dkt. No. 23 at 6-7; Declaration of Julie Aguilar Rogado ("Aguilar Rogado Decl."), Dkt. No. 24 at 1-2; Declaration of Gary F. Smith ("Smith Decl."), Dkt. No. 25 at 1-3), and that such qualifications cannot be obtained elsewhere at the statutory rate, also as they declare (Aguilar Rogado Decl. at 4-5; Smith Decl. at 3-4), plaintiff has not shown that his attorneys' particular expertise was actually "needed" in this particular litigation. See Pirus, 869 F.2d at 542. Plaintiff has not satisfied every element of the test for whether "special factors" warrant a fee award in excess of EAJA's hourly cap. Id. at 541-42.

The court in Pirus affirmed an enhanced fee award because it was "no routine disability case," and the plaintiff's attorney possessed the "special expertise" needed to litigate the case as a class action involving "a highly complex area of the Social Security Act." Pirus, 869 F.2d at 542. Plaintiff's case is not analogous. Plaintiff's case did not involve a class action, the legislative history of "widow's benefits," or other obscure issues akin to the "application of the 'fleeing felon' provision" or arguments that the agency improperly implemented its own regulations. See id.; Garnes v. Barnhardt, 2006 WL 249522 at *5-6. As defendant persuasively argues, this case boiled down to whether the ALJ adequately supported his adverse credibility determinations. (Dkt. No. 26 at 6.) Credibility is often an issue in Social Security cases, whether the case is a disability/denial-of-benefits case or an overpayment/waiver case, and plaintiff has not shown this issue to be one for which a particular "expertise" is necessary. Courts decline to award fees in excess of EAJA's hourly cap where the adjudicated arguments were "typical" or "routine." See e.g., Barry v. Astrue, No. CV-09-01677-PHX-NVW, 2011 U.S. Dist. LEXIS 30303 at *3-4 (D. Ariz. Mar. 20, 2011) (unpublished) (finding that no special factors existed for enhanced fees in a case that was "routine, involving typical arguments about the ALJ's credibility determinations, residual functional capacity assessment, and so forth"); Harden v. Comm'r of Soc. Sec., 497 F. Supp. 2d 1214, 1216 (D. Ore. 2007) (in finding that total amount of hours spent on litigation was not "reasonable," the court held that the case was "fairly characterized as routine" where it involved "assessments of plaintiff's credibility," among other things). While plaintiff's counsel successfully litigated this case and undoubtedly serves a valuable public service in representing plaintiffs in "waiver" cases, in this particular case plaintiff has not compellingly shown that "special factors" justify a fee award in excess of EAJA's hourly maximum. While plaintiff's "waiver" case was not a typical "denial of benefits" case, plaintiff nonetheless argued this case on straightforward "credibility" issues. Plaintiff has not demonstrated that his attorneys' particular expertise or knowledge was actually "needed in the litigation." See Pirus, 869 F.2d at 542.

Accordingly, in this particular case, plaintiff has not compellingly shown that "special factors" justify a fee award at "full market rates" (Dkt. No. 6-8) and in excess of EAJA's hourly maximum (adjusted for cost-of-living). With cost-of-living increases, plaintiff is entitled to fees at an hourly rate is $172.24 per hour for work completed in 2009, $175.06 per hour for work completed in 2010, and $179.51 per hour for work completed in 2011.*fn5 28 U.S.C. § 2412(d)(2)(A)(ii); Thangaraja, 428 F.3d at 876-77.

B. Plaintiff Has Demonstrated That The Hours Incurred By His Counsel Were Reasonable

Plaintiff and defendant agree that, not counting time plaintiff spent in drafting his Reply, applying the cost-of-living increase to plaintiff's hourly fees from 2009, 2010, and 2011, plaintiff's compensable attorneys' fees would total $7,981.18, give or take a few cents. (Compare Dkt. No. 23 at 8 with Dkt. No. 26 at 8.)

Plaintiff's attorneys represent that they spent 45.2 hours of attorney time on this matter prior to drafting plaintiff's Reply brief. (Dkt. No. 23 at 8; Aguilar Rogado Decl. at 4; Smith Decl. at 3.) Plaintiff's attorneys represent that it took them an additional 17.4 hours*fn6 to draft plaintiff's Reply brief. (Dkt. No. 27 at 10.) In sum, plaintiff's attorneys claim to have spent 62.6 hours litigating this matter. (Dkt. No. 23 at 8, Dkt. No. 27 at 10.) Defendant contends that the court should reduce the requested fees because some of the time billed may represent "double billing" and some represent tasks, like service of documents, which may have been "clerical in nature." (Dkt. No. 26 at 9, 10, 12.)

After reviewing the record and the work undertaken by counsel, the court declines to conduct a line-by-line analysis of counsel's billing entries. See Sumner v. Astrue, No. CIV S-06-2883 DAD, 2009 WL 782082,at *2-3 (E.D. Cal. March 23, 2009) (unpublished) (citing Stewart v. Sullivan, 810 F. Supp. 1102, 1107 (D. Haw. 1993); Destefano v. Astrue, No. 05-CV-3534, 2008 WL 623197, *4 (E.D.N.Y. March 4, 2008)). With the exception of billing a total of 0.5 hours for clerical matters*fn7 , the undersigned finds that plaintiff has demonstrated that the remaining 62.1 hours incurred were reasonable. Plaintiff has explained the fact-intensive nature of this litigation and has described why his EAJA briefing was time-consuming. (Dkt. Nos. 23 at 1-5; Dkt. No. 27 at 3-7 (among other things, describing EAJA research necessitated by various arguments, including a 29-case string cite, in defendant's opposition brief).) Further, while "excessive, redundant, or otherwise unnecessary" hours should be excluded from a fee award, Hensley, 461 U.S. at 434, defendant has not compellingly argued that plaintiff's attorneys truly "double billed," engaged in unnecessary tasks, or incurred unnecessary extra hours. (Dkt. No. 26 at 10-11.)

Plaintiff spent a total of 32.5 hours litigating his entitlement to fees under the EAJA, and plaintiff has described reasonable bases for these hours (such as, researching and addressing each of the twenty-nine cases within a lengthy footnote in defendant's opposition brief (Dkt. No. 27 at 3)). Further, defendant has not compellingly shown that such hours warrant reduction or fail to bear any rational relation to the number of hours spent litigating the merits of this case. See Spegon v. Catholic Bishop, 175 F.3d 544, 553-54 (7th Cir. 1999) (non-EAJA case) (district court reduced award for time taken to prepare attorneys' fees motions, where the number of hours requested was "overly exaggerated" and the fee request was "inaccurate," because the hours expended on a fee request should "bear a rational relation to the number of hours spent litigating the merits of the case"). Defendant has not shown plaintiff's requested hours to be "overly exaggerated" or "inaccurate." See id. Likewise, defendant's citation to out-of-circuit cases where courts have "reduced" hours incurred as part of a plaintiff's "fees litigation" is not compelling. Every case turns on different facts. Despite defendant's contention that "[s]tandard EAJA briefing generally requires no more than 4 hours" (Dkt. No. 26 at 11-12), defendant's citation to district court cases - two of which are from outside the Ninth Circuit - do not squarely support this proposition*fn8 , and they certainly do not suggest a four-hour cap should apply to the EAJA fees briefing in this particular case.

Having carefully reviewed the pending motion and omitting plaintiff's "clerical" fees, the court finds that plaintiff reasonably spent 62.1 hours of attorney time in litigating the merits of this matter and in litigating plaintiff's fees request. Plaintiff is awarded attorney's fees in the total amount of $11,017.12.*fn9 While the credibility issues presented in this litigation were ultimately straightforward, the court appreciates that social security cases are often fact-intensive and is aware of the successful result obtained by counsel.

2d at 1214-15. In Spruil, the court noted that plaintiff spent approximately 30% of her total litigation time on the fees request, reduced that time by the hours incurred in drafting plaintiff's reply (as the court's local rules discouraged replies), and then drew from the "Court's experience" that a fees application typically "requires no more than 3 to 4 hours." Spruil, 691 F. Supp. at 307. However, the court in Spruil also noted that "the Court does not foreclose the possibility that an EAJA fee award application could take more time" depending on "the circumstances of the case." Id. In Queen Square, the court reduced the time plaintiff ascribed to filing an EAJA petition from 2.5 hours to 1.0 hours, but the court did not discuss any motivating factors for the reduction aside from deeming the time "excessive." Queen Square, 168 F. Supp. 2d at 1321. Accordingly, none of defendant's cited cases compel the undersigned to place a four-hour cap upon the hours plaintiff incurred in drafting his EAJA briefing.


Based on the foregoing, IT IS HEREBY ORDERED that:

1. Plaintiff's Motion For An Award Of Attorney's Fees Pursuant To The Equal Access To Justice Act (Dkt. No. 22) is granted in part and denied in part. Plaintiff's motion is granted insofar as plaintiff is awarded reasonable attorneys' fees as a prevailing party pursuant to the EAJA. Plaintiff's motion is denied insofar as plaintiff is awarded fees subject to EAJA's hourly rate maximum, as adjusted for cost-of-living, rather than fees at the "full market rate" as plaintiff requested.

2. Plaintiff is awarded attorneys' fees under the EAJA for 62.1 hours reasonably spent, in the total amount of $11,017.12.

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