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Pablo Reyna v. Michael J. Astrue

December 6, 2011

PABLO REYNA,
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. 22)

Plaintiff moves the Court to grant attorneys' fees of $13,082.78 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 excessive and noting the duplicative time billed by Plaintiff's two attorneys. 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, duplication of effort, and inflated billing, and orders the payment of fees totaling $7527.63.

I. Legal and Factual Background

Plaintiff applied for disability benefits based on multiple physical ailments and mental retardation. After a prolonged passage through the agency that included an administrative remand to the Administrative Law Judge (ALJ), the Commissioner denied Plaintiff's application for disability benefits.

On November 6, 2009, Plaintiff appealed the Commissioner's decision to this Court. On June 9, 2011, the Court concluded that the ALJ made a legal error in determining that Plaintiff's mental retardation did not manifest itself before Plaintiff was 22 years old. As a result, the Court reversed the Commissioner's decision and remanded for payment of benefits.

On September 6, 2011, Plaintiff filed a motion for attorneys' fees under the EAJA totaling $11,108.17. On October 20, 2011, Plaintiff filed his reply brief as well as the supplementary declaration of Mr. Wilborn, seeking to add eleven additional hours ($1974.61) to the billing for time spent preparing the reply brief and certification for the motion. Thus, Plaintiff's total EAJA fee request totals $13,082.78.

II. 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.

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 amount of the fee must be determined based on the case's particular facts. Hensley v. Eckerhart, 461 U.S. 424, 429 (1983).*fn1 The Court determines the fee based on 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. Id. at 433, 437; 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 $13,082.78, attributable to 74.45 attorney hours bill for prosecuting Plaintiff's appeal. Of the claimed hours, 14.7 are attributable to Ms. Bosavanh; 59.75 to Mr. Wilborn. The Government objects to Plaintiff's fee request, arguing that the amount requested is unreasonable and noting unnecessary duplication of effort by the two attorneys and Ms. Bosavanh's inflated billing for reviewing documents. On its own motion, the Court notes inappropriate billing of activities more properly delegated to clerical or paraprofessional staff.

A. Ms. Bosavanh's Time

1. Clerical and Paraprofessional Work

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). Cf., 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).

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,*fn2 and related documents was work reasonably to be performed by an experienced legal secretary. While the Court acknowledges that Ms. Bosavanh likely would review these documents before their filing with the Court, all of the listed documents are boilerplate forms to be completed by the word processor inserting relevant information, an appropriate clerical task. Similarly, clerical staff would likely perform the actual filing of the documents. The Court reduces this line item to .2 hours, sufficient time to review these brief documents before returning them to staff for filing.*fn3

Second, Ms. Bosavanh billed one hour on November 16, 2009, to prepare documents and serve three government defendants; electronically file the proof of service; and to prepare the consent to a magistrate judge. Even though Ms. Bosavanh may deem it necessary to perform a final review of her staff's work and bill accordingly, the tasks themselves are secretarial or paralegal work. The Court reduces this item to .1 hours.

In addition, the Court notes that the extreme lack of detail of the Ms. Bosavanh's time statements makes it impossible for the Court to analyze the nature of the repeated entries of "teleconference with client." Such nebulous entries provide no clue whether the purpose of the telephone call reasonably required it to be handled by an attorney or whether the purpose was one that could appropriately and economically have been handled by other staff, for example, a reminder to return documents. The judges of this Court have repeatedly instructed Ms. Bosavanh to provide time records that are sufficiently detailed to allow evaluation of each entry's propriety. She has not complied. The Court reduces the time attributable to the telephone calls by one-half, that is by 1.0 hours.

Similarly, Ms. Bosavanh's vague October 16, 2009 entry, "Draft and review documents to mail to client," provides no clue that this entry refers to anything other than compiling and mailing standard materials, such as a retainer agreement, questionnaires, or informative or educational materials, that would typically be dispatched to a new client at this point in a social security appeal. Such correspondence is properly treated as overhead, billable neither to a client or to an adversary in ...


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