United States District Court, E.D. California
ORDER GRANTING IN PART PLAINTIFF’S MOTION FOR
ATTORNEY’S FEES UNDER THE EQUAL ACCESS TO JUSTICE ACT
M. SNYDER UNITED STATES MAGISTRATE JUDGE
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).
LEGAL AND FACTUAL BACKGROUND
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.
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.
Reasonableness of Fees Requested
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).
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.
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).
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