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Uhl v. Colvin

United States District Court, E.D. California

June 15, 2016

CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.



         This is a Social Security appeal. Before the Court is Plaintiff’s motion for attorney’s fees, costs, and expenses under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412. Doc. 37. No hearing was held as the Court found the matter suitable for submission on the papers. Local Rule 230(g).


         On August 16, 2013, Plaintiff filed a complaint, by his attorney, Denise Bourgeois Haley (“DBH”), challenging the denial of his disability insurance benefits and supplemental security income by the Commissioner of Social Security (“Commissioner”). Doc. 1. The Court issued an order on March 19, 2015, affirming the decision of the Administrative Law Judge (“ALJ”). Doc. 30. Shortly after, Plaintiff filed a notice of appeal from the Court’s judgment and new counsel, Lawrence D. Rohlfing (“LDR”), was added. Docs. 32-33. On January 27, 2016, the Ninth Circuit issued an order granting the parties’ joint motion for a full remand under sentence four of 42 U.S.C. § 405(g), vacated the Court’s March 19, 2015 order, and directed the Court to remand this case to the Commissioner for a de novo hearing and enter judgment under Federal Rule of Civil Procedure 58. Doc. 36.

         On March 2, 2016, Plaintiff filed this motion under EAJA seeking $11, 814.08 in attorney’s fees for 65.95 hours expended on this case. In support of the motion are: (1) the declaration of Mr. Rohlfing, (2) an itemized statement of the hours expended by the attorneys and two paralegals in this case, (3) an excerpt from the “United States Consumer Law Attorney Fee Survey Report 2013-2014” by Ronald L. Burdge, Esq., and (4) the contingency agreement between Plaintiff and the Law Offices of LDR. Plaintiff avers attorney’s fees are warranted because the Commissioner’s position was not substantially justified in light of her stipulation to remand for the ALJ to reevaluate the medical opinion evidence. Plaintiff further requests that the award of attorney’s fees be payable to the Law Offices of LDR because Plaintiff has assigned the right to receive EAJA fees, costs, and expenses thereto. Doc. 37. The Commissioner filed an opposition on April 13, 2016, disputing only part of Plaintiff’s motion, namely the amount requested and the proper payee. She does not dispute the hourly rates claimed by Plaintiff, but instead disputes the reasonableness of the hours expended. Doc. 41. Two days later, Plaintiff filed a reply brief addressing the Commissioner’s opposition and reiterated his position concerning the reasonableness of the amount requested and that the Court may order payment to the Law Offices of Lawrence D. Rohlfing under its assignment agreement with Plaintiff. Additionally, Plaintiff requests additional fees for time expended reviewing the Commissioner’s opposition and preparing the reply brief, thereby bringing the total request to $12, 575.20. Doc. 42. The Commissioner did not request to file a sur-reply brief.


         A. Reasonableness of Fees Requested

         1. Legal Standard

         Attorney fees granted under EAJA must be reasonable. 28 U.S.C. § 2412(d); see Sullivan v. Hudson, 490 U.S. 877, 883 (1989) (“The EAJA was designed to . . . [provide] for an award of a reasonable attorney’s fee to a prevailing party in a civil action or adversary adjudication unless the position taken by the United States . . . was substantially justified or special circumstances make an award unjust.”) (internal quotations omitted). The burden lies with the applicant to demonstrate the reasonableness of his request. Blum v. Stenson, 465 U.S. 886, 897 (1984). And though a “district court has discretion in determining the amount of a fee award, ” it must “provide a concise but clear explanation of its reasons for the fee award.” Hensley v. Eckerhart, 461 U.S. 424, 437 (1983).

         “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, 461 U.S. at 433. This has come to be known as the “lodestar” approach. Costa v. Comm’r of Soc. Sec. Admin., 690 F.3d 1132, 1135 (9th Cir. 2012). Importantly, the Supreme Court urged that “[c]ounsel for the prevailing party should make a good faith effort to exclude from a fee request hours that are excessive, redundant, or otherwise unnecessary, just as a lawyer in private practice ethically is obligated to exclude such hours from his fee submission.” Hensley, 461 U.S. at 434.

         “[A] prevailing party that satisfies EAJA’s other requirements may recover its paralegal fees from the Government at prevailing market rates.” Richlin Sec. Serv. Co. v. Chertoff, 553 U.S. 571, 590 (2008). What is not recoverable, however, are:

purely clerical tasks such as filing documents and preparing and serving summons. See Missouri v. Jenkins, 491 U.S. 274, 288 n. 10, (1989) (holding that an attorney may not seek reimbursement for purely clerical tasks at an attorney rate); Nadarajah v. Holder, 569 F.3d 906, 921 (9th Cir. 2009) (holding that clerical tasks such as filing and organization “should have been subsumed in firm overhead rather than billed at paralegal rates”); Brandt, 2009 WL 1727472, at *4 (finding that attorney time spent drafting and serving summons was non-compensable clerical work).

Neil v. Comm’r of Soc. Sec., 495 F. App’x 845, 847 (9th Cir. 2012).[2]

         2. Hourly Rates

         Under EAJA, “attorney fees shall not be awarded in excess of $125 per hour unless the court determines that an increase in the cost of living or a special factor . . . justifies a higher fee.” 28 U.S.C. § 2412(d)(2)(A); see Atkins v. Apfel, 154 F.3d 986, 987 (9th Cir. 1998). Considering the cost of living increases then, the Ninth Circuit ...

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