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Franklin v. Colvin

United States District Court, N.D. California

August 4, 2016

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


          PHYLLIS J. HAMILTON United States District Judge

         Before the court is plaintiff Merriweather Rose Franklin’s motion for attorneys’ fees pursuant to the Equal Access to Justice Act (the “EAJA”). Dkt. 37. The matter is fully briefed and suitable for decision without oral argument. Having read the parties’ papers and carefully considered their arguments and the relevant legal authority, and good cause appearing, the court hereby rules as follows.


         This case began as an appeal from the Commissioner of Social Security’s (the “Commissioner”) decision to deny disability benefits to Franklin. On August 13, 2013, this court granted the Commissioner’s motion for summary judgment, affirming the administrative law judge’s (“ALJ”) denial of benefits. Dkt. 28. Franklin appealed, and won a reversal in the Ninth Circuit on March 12, 2016. See Dkt. 33. The Ninth Circuit held that the ALJ had failed to provide “adequate reasons” for his adverse finding as to Franklin’s credibility. Id. at 2. In particular, the ALJ did not “link the credibility determination to specific portions of Franklin’s testimony.” Id. at 2-3 (citing Brown-Hunter v. Colvin, 806 F.3d 487, 495 (9th Cir. 2005)). Following remand from the Ninth Circuit, this court remanded the matter to the Commissioner for further proceedings. Dkt. 35.

         Franklin now moves for an award of attorneys’ fees under EAJA, 28 U.S.C. § 2141(d), for the work performed by her attorneys in this court and on appeal to the Ninth Circuit. Dkt. 37 (“Mot.”). The fee application is timely and supported by declarations from three attorneys-David J. Linden, Ralph Wilborn, and Linda Ziskin- who worked on this matter. Linden seeks fees for a total of 3.5 hours for his initial meeting with Franklin and preparing the complaint and IFP application. Dkt. 38-1. Wilborn seeks fees for 108.25 hours for evaluating the case, reviewing the administrative record, briefing the motion for summary judgment before this court, and drafting the appellate briefs in the Ninth Circuit. Dkt. 38-2. Ziskin seeks fees for 27.2 hours for preparing and presenting oral argument before the Ninth Circuit. Dkt. 38-3.

         The EAJA caps maximum the maximum hourly rate at $125, but provides for increases based on the cost of living. 28 U.S.C. § 2142 (d)(2)(A). The attorneys each use the standard maximum rates under the EAJA listed on the Ninth Circuit website pursuant to Thangaraja v. Gonzales, 428 F.3d 870, 876-77 (9th Cir. 2005). See U.S. Court of Appeals for the Ninth Circuit, Statutory Maximum Rates Under the Equal Access to Justice Act, (last visited July 26, 2016).

         The requested fees amount to $20, 355.73 for Wilborn’s work, $5, 175.62 for Ziskin’s work, and $648.10 for Linden’s work, plus expenses in the amount of $688.15. Mot. at 7. Plaintiff further requests an additional $1, 150.20 for 6 hours of work briefing the reply brief in support of this motion for attorneys’ fees. Dkt. 40 at 10. In all, the plaintiff seeks $28, 017.80 in fees and expenses.


         A. Legal Standard

         The EAJA mandates an award of attorneys’ fees and expenses to a prevailing party other than the United States in any civil action, other than one sounding in tort, “brought by or against the United States . . . unless the court finds the position of the United States was substantially justified or that special circumstances make an award unjust.” 28 U.S.C. § 2412(d)(1)(A). The government bears the burden of showing substantial justification. ORNC v. Marsh, 52 F.2d 1485, 1492 (9th Cir. 1995). In making this determination, a court “must focus on two questions: first, whether the government was substantially justified in taking its original action; and, second, whether the government was substantially justified in defending the validity of the action in court.” Gutierrez v. Barnhart, 274 F.3d 1255, 1258-59 (9th Cir. 2001) (citation omitted).

         Substantial justification requires “a reasonable basis in law and fact.” Pierce v. Underwood, 487 U.S. 552, 565 (1988). “The Commissioner is ‘substantially justified’ if his position met ‘the traditional reasonableness standard - that is justified in substance or in the main, or to a degree that could satisfy a reasonable person.’” Lewis v. Barnhart, 281 F.3d 1081, 1083 (9th Cir. 2002) (citations and quotations omitted). Moreover, “[t]he Supreme Court has explained that ‘a position can be justified even though it is not correct, ’” so long as it has “a reasonable basis in law and fact.’” Id. (quoting Pierce v. Underwood, 487 U.S. 552, 556 n.2 (1988)); see also Flores v. Shalala, 49 F.3d 562, 569 (9th Cir. 1995) (“In this circuit, we apply a reasonableness standard in determining whether the government’s position was substantially justified for purposes of the EAJA”).

         If fees are awarded under the EAJA, the court has considerable discretion in determining the amount of a fee award, including the reasonableness of the hours claimed by the prevailing party. Gates v. Deukmejian, 987 F.2d 1392, 1398 (9th Cir. 1992) (citing Hensley v. Eckerhart, 461 U.S. 424, 437 (1983)). In determining what constitutes a reasonable fee, a court should consider factors such as the number of hours requested and any duplication of effort. Id. at 1397. The court should “provide a concise but clear explanation of its reasons for the fee award.” Hensley, 461 U.S. at 437; Comm’r, INS v. Jean, 496 U.S. 154 (1990). The starting point for determining reasonable fees is the reasonable hours of work expended on the case, multiplied by a reasonable hourly rate. Hensley, 461 U.S. at 433.

         Counsel should not seek fees for work that is “excessive, redundant, or otherwise unnecessary.” Id. at 434. It is improper, however, for courts to apply any “de facto cap” to the number of hours attorneys may bill for particular types of cases; rather, “individualized consideration must be given to each case.” Costa v. Comm’r of Soc. Sec. Admin., 690 F.3d 1132, 1134 (9th Cir. 2012). The district court may impose, however, up to a 10 percent “haircut” on the fees claimed based on its exercise of discretion and “without a more specific explanation.” See Moreno v. City of ...

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