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Savuth Em v. Michael J. Astrue

March 2, 2012

SAVUTH EM,
PLAINTIFF,
v.
MICHAEL J. ASTRUE,
COMMISSIONER OF SOCIAL SECURITY,
DEFENDANT.



The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge

(Doc. 19) FINDINGS AND RECOMMENDATIONS THAT PLAINTIFF'S APPLICATION FOR AN AWARD OF EQUAL ACCESS TO JUSTICE FEES BE GRANTEDOBJECTIONS DUE: 15 DAYS

I. INTRODUCTION

Plaintiff Savuth Em ("Plaintiff") filed a complaint on August 6, 2010, seeking reversal of the Administrative Law Judge's ("ALJ") decision denying his application for Social Security disability benefits. (Doc. 1.) On March 3, 2011, the parties filed a stipulation indicating their agreement that Plaintiff is disabled and requested that the Court vacate the administrative decision and enter judgment in Plaintiff's favor. (Doc. 16.) On March 4, 2011, the parties' stipulated request was granted, and judgment was issued in Plaintiff's favor. (Doc. 17.)

On June 2, 2011, Plaintiff filed an application for an award of fees and expenses pursuant to the Equal Access to Justice Act ("EAJA") in the amount of $4,245.20. (Doc. 19.) On July 1, 2011, the Commissioner filed an opposition to Plaintiff's request asserting that the total number of hours expended by Plaintiff's counsel was unreasonable. (Doc. 21.) On July 14, 2011, Plaintiff filed a reply to the Commissioner's opposition. (Doc. 22.) On November 22, 2011, the Court issued an order that any supplemental request for EAJA fees related to the time expended by Plaintiff's counsel on the reply brief was to be filed within 20 days of the Court's order.

On November 28, 2011, Plaintiff filed a supplemental application for an award of EAJA fees seeking an additional $673.16 for time expended on the July 14, 2011, reply brief. (Doc. 24.) The Commissioner opposed the supplemental application for EAJA fees again asserting that the amount of the attorneys' fees requested was unreasonable. (Doc. 26.) For the reasons set forth below, the Court RECOMMENDS that Plaintiff's application for EAJA fees be GRANTED in the amount of $3,476.34.

II. DISCUSSION

A. Legal Standard

Pursuant to 28 U.S.C. § 2412(d)(1)(A), claimants who successfully challenge an agency decision in a civil action are entitled to reasonable fees and other expenses:

[A] court shall award to a prevailing party other than the United States fees and other expenses . . . 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.

Any application for an award of EAJA fees and other expenses must be made within thirty days of final judgment in the action and "must include an itemized statement from any attorney representing or appearing in behalf of the party stating the actual time expended and the rate at which fees and other expenses were computed." 28 U.S.C. § 2412(d)(1)(B). The party submitting the application is also required to allege that the position of the United States was not substantially justified. Id. Further, the party applying for an award of EAJA fees must have an individual net worth not greater than $2,000,000 at the time the civil action was filed. Id. § 2412(d)(2)(B).

B. Plaintiff is Entitled to An Award of EAJA Fees and Other Expenses

As an initial matter, Plaintiff has met the statutory criteria to be eligible for an EAJA award of fees and other expenses. A remand pursuant to sentence four of 42 U.S.C. § 405(g) has been found to constitute a final, appealable judgment. Shalala v. Schaefer, 509 U.S. 292, 296-302 (1993). A party who obtains a sentence four remand in a social security appeal is a prevailing party for purposes of the EAJA. Schaefer, 509 U.S. at 302. Here, Plaintiff asserts that he was a prevailing party for purposes of the appeal because the parties stipulated to a remand for entry of a fully-favorable decision for Plaintiff. (Doc. 19-1, 2:12-17.) The Commissioner does not dispute this. Plaintiff further asserts that his net worth as an individual was not more than $2,000,000 at the time the civil action was filed pursuant to 28 U.S.C. § 2412(d)(1)(D)(2)(B), which is also undisputed by the Commissioner. (Doc. 19-1, 2:18-20; see Doc. 21, 2:2-21.) Plaintiff's assertion that the Commissioner's position was not substantially justified is also undisputed. (Doc. 19-1, 3:13-4:6.) The Court finds that Plaintiff is entitled to an award of his reasonable attorneys' fees and expenses.

C. Reasonableness of the Fees

The Court must determine what amount constitutes a reasonable award of attorneys' fees. See 28 U.S.C. § 2412(d)(2)(A); Gates v. Deukmejian, 987 F.2d 1392, 1401 (9th Cir. 1992) (district court has an independent duty to review plaintiff's fee request to determine its reasonableness). "The most useful starting point for determining the amount of a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate." Hensley v. Eckerhart, 461 U.S. 424, 433 (1983); Blum v. Stenson, 465 U.S. 886, 897 (1984). "The [Court] must determine not just the actual hours expended by counsel, but which of those hours were reasonably expended in the litigation." Ramos v. Lamm, 713 F.2d 546, 553 (10th Cir. 1983). "'Hours that are not properly billed to one's client are not properly billed to one's adversary pursuant to statutory authority.'" Hensley, 461 U.S. at 434 (quoting Copeland v. Marshall, 641 F.2d 880, 891 (D.C. Cir. 1980) (en banc)). The applicant bears the burden of demonstrating the reasonableness of the fee request. Blum, 465 U.S. at 897.

1. Hourly Rates

Plaintiff requests $175.06 per hour for work performed by his counsel, which is the applicable statutory maximum hourly rate under EAJA for attorney work performed in 2010, adjusted for increases in the cost of living, as published by the Ninth Circuit on its website pursuant to 28 U.S.C. § 2412(d)(2)(A), Thangaraja v. Gonzales, 428 F.3d 870, 876-77 (9th Cir. 2005), and Ninth Circuit Rule 39-1.6. Although both counsel for Plaintiff performed some work in 2011, Plaintiff only seeks an award of fees at the 2010 rate as a concession to the government. (See Doc. 19-1, p. 8 ("Based on the foregoing, and using the 2010 [rate] so as to favor the government, the attorneys' fee in this case should be $4,245.20.").) This hourly rate is not opposed by the Commissioner. (See Doc. 21, 2:20-21.) Further, this rate has been considered reasonable in other social security cases in this district, see, e.g., Roberts v. Astrue, No. 1:09-cv-1581-DLB, 2011 WL 2746715, at * 4 (E.D. Cal. July 13, 2001), and the Court does not find any basis to recommend a reduction to the hourly rate requested.

2. Hours Expended

As to hours expended, Plaintiff's original application for an award of EAJA fees in addition to the supplemental application seek attorneys' fees for a total of 15.0 hours of work performed by Sengthiene Bosavanh, Esq., and 13.0 hours expended by Ralph Wilborn, Esq.

The Commissioner opposes the fees requested, asserting that the hours expended were unreasonable. In general, the Commissioner argues that no briefs were filed in this case because the parties stipulated to a remand, the administrative record was relatively small, containing only 284 pages of documents, and the single issue warranting a voluntary remand for a fully favorable decision was uncomplicated. (Doc. 21, 2:18-19.)

a. Time Expended by Ms. Bosavanh, Esq.

With regard to the time expended by Ms. Bosavanh, the Commissioner asserts that the 5.0 hours of Ms. Bosavanh's time spent reviewing the record and the confidential letter brief written by Mr. Wilborn was unreasonable. Given the relatively small size of the administrative record and the simplicity of the issue, there was no reason for Ms. Bosavanh to spend 5 hours reviewing documents and Mr. Wilborn's brief. Specifically, the Commissioner asserts that Ms. Bosavanh's time spent reviewing a more experienced attorney's brief was duplicative and, as such, unreasonable. (Doc. 21, 4:5-12.) The Commissioner also argues that many of Ms. Bosavanh's billing entries reflect time spent on clerical tasks that are not compensable under EAJA, certain billing entries lack a requisite amount of specificity to determine their reasonableness, and an entry on March 4, 2011, for 0.6 hours of time to review the one-page, signed stipulation of the parties is clearly excessive. (Doc. 21, 4:21-5:5.)

(i) Time Spent Reviewing the Record and Mr. Wilborn's Work

While the Court appreciates that Ms. Bosavanh must review Mr. Wilborn's work before it is filed with the Court or served on the Commissioner pursuant to the Court's scheduling order because she, and not Mr. Wilborn, is the attorney of record, the description of her time spent reviewing Mr. Wilborn's brief on January 7, 2010, does not indicate that any editing was performed or that anything was done beyond reading the confidential letter brief. (See Doc. 19-2, p. 3.) Without a description indicating what the confidential brief review entailed, the Court finds that 1.4 hours to read Mr. Wilborn's confidential letter brief on January 7, 2010, was unreasonable; the Court finds that critically reading the brief, without performing any research or editing, ...


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