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Gould v. Berryhill

United States District Court, S.D. California

July 14, 2017

JAMES R. GOULD, Plaintiff,
NANCY BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.


          HONORABLE LARRY ALAN BURNS United States District Judge.


         This order was prepared in draft some time ago. But because of an administrative error, it was inadvertently not signed and docketed. The Court appreciates the parties' patience in this matter.

         Plaintiff James Gould was injured in an automobile accident and has not worked since 2002. When his claim for social security disability benefits was denied, he filed an appeal. On a joint motion from the parties, the Court entered final judgment against the Commissioner of Social Security, reversing the denial of Gould's disability claim.[1] Gould now moves for attorneys fees of $11, 556.68 under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412 (d)(1)(A). The Commissioner concedes that Gould substantially prevailed and is entitled to $172 for each hour reasonably billed on the case. (Dkt. No. 33 at 10:4.) However, she argues that less than half of the hours requested by Gould were reasonably necessary. The burden is on Gould to show that he is entitled to the fees he seeks. See Blum v. Stenson, 465 U.S. 886, 896 n.11 (1984); Harris v. Maricopa Cty. Sup. Ct., 631 F.3d 963, 971-71 (9th Cir. 2011). For reasons discussed below, the Court finds that litigating this case reasonably required 58.54 hours.

         Discussion Hours Reasonably Expended

         Gould claims that his attorney, Mary Mitchell, spent 67.19 hours over the course of almost two years litigating this routine disability case. The Commissioner challenges the reasonableness of hours billed throughout the litigation and argues that only 28.31 hours were reasonably expended.

         First, the Commissioner argues that 2.73 hours billed involved clerical work that should have been subsumed in firm overhead rather than billed at attorney rates. (Dkt. No. 33 at 3:3-4:7.) The identified hours involve reviewing phone calls to Court personnel (which should and in some cases must be placed by attorneys, not staff), phone calls to the Assistant U.S. Attorney, and review of communications from the Court. Communications between attorneys, and from attorneys to the Court are ordinarily not delegated. And in many cases, counsel are not allowed to delegate them to staff. See Chambers Standing Order in Civil Cases, ¶ 14 (requiring that counsel personally call chambers, rather than allowing their staff to do it). Even if some of the document review were delegated, staff would still have needed to communicate the information to counsel, which would have saved little or no time. The Court finds all 2.73 hours were reasonably expended.

         Second, the Commissioner argues that only 4 of a total of 17.71 hours of communication between Mitchell and Gould were necessary in this case, despite its nearly two years in litigation. (Dkt. No. 33 at 7:4-7.) The Commissioner identifies a list of billing entries she claims were unreasonable communications, but she provides no reasoning and cites no authority to support her characterization. (Dkt. No. 33 at 7:4-7.)

         The number of hours Mitchell spent communicating with Gould was not facially unreasonable. California Rules of Professional Conduct require attorneys to “keep a client reasonably informed about significant developments relating to the employment or representation, including promptly complying with reasonable requests for information[.]”[2]Cal. R. Prof. Conduct 3-500. Mitchell billed a total of 17.1 hours for client communications over the course of approximately 95 weeks of litigation. In other words, Mitchell spent an average of fewer than 11 minutes each week in communication with Gould about the case. If changes and developments in litigation make attorney-client communication necessary, 11 minutes each week is not unreasonable. However, the Court's experience suggests, and the case record confirms, that much of the time spent communicating in this case was not reasonably necessary.

         The few significant developments in this case occurred at lengthy intervals. The docket and itemized billing entries indicate that this case required Mitchell to file a complaint and a motion for summary judgment, negotiate remand, and file a motion for attorney's fees. The relatively few litigation requirements and related case developments occurred over twenty-two months. The billing entries involving attorney-client communications reference “case status, ” “case time lines, ” and “case issues, ” (Dkt. No. 32-4 at 1-7), though frequently no developments had occurred that might have required such communications.[3]

         Mitchell's justifications for spending “extra hours” on this case seem to concede that some of the communications were not reasonably necessary. (Dkt. No. 32-2 at 3:25-27 (“[Gould] was extremely anxious due to mental disorders and required extraordinary attention, correspondence and communication[.]”).) But any mental disorders Gould was suffering from either were not found to be related to his accident or disability, or were slight. See AR at 364 (psychologist's report, concluding “I cannot state with reasonable medical probability that [the stress of Gould's accident and resulting injuries] has led to a post-accident mental disorder/disability as a result of his physical injuries.”) and 454-57 (psychiatrist's report, finding slight psychological limitations due to depression). Furthermore, Gould's documentation does not establish a link between any mental disorders and the extra time devoted to communication. The lack of detail in the billing entry descriptions makes it impossible to state with certainty the number of hours of communication reasonably necessary in this case. Mitchell's explantion may show why she communicated so often with Gould, but it does not show why all those hours were reasonably necessary.

         Gould has not carried his burden with regard to the number of hours devoted to client communications. Clearly some were necessary, but he has not adequately documented the percent or number. Based on the record, the limited billing entry descriptions, and its own experience, the Court finds that eight hours were reasonably expended on attorney-client communication in this case. The Court will therefore deduct 9.1 hours from Gould's total.

         Third, the Commissioner argues that only 22 out of 39.06 hours billed reviewing the transcript and drafting the motion for summary judgment were reasonable. Mitchell reviewed the 612 page transcript and record, (Dkt. No. 33 at 8:13), in 21.55 hours, expending approximately 2 minutes per page. Such a use of time is reasonable. Likewise, Mitchell spent 17.51 hours preparing a motion for summary judgment that included “6 separate issues, ” totaling, “30 pages of concentrated legal argument.” (Dkt. No. 32-2 at 4:6-7). Again, Mitchell's expenditure was reasonable. The fact that the Commissioner ultimately moved to remand the case does not make it unreasonable for Mitchell to have spent time on multiple issues. On the contrary, it was arguably the strength of Mitchell's motion that convinced the Commissioner to remand the case. Thus the Court finds that Mitchell reasonably expended 39.06 hours reviewing the record and drafting the motion for summary judgment.

         Finally, the Commissioner argues that the 8.83 hours billed preparing the motion for attorney's fees was unreasonable and should be reduced to 4 hours. The Commissioner does not deny that time spent on a fees application is compensable, see Clark v. City of LosAngeles,803 F.2d 987, 992 (9th Cir. 1986), but she alleges that “Plaintiff's counsel indiscriminately billed for all of her time (and possibly more)[, ]” (Dkt. No. 33 at 9:11-12), and cites a Seventh Circuit decision to argue that a requested fee should, “bear a rational relation to the number of hours spent litigating the merits of the case.” Spegon v. Catholic Bishop,175 F.3d 544, 554 (7th Cir. 1999). The Court finds no support for the Commissioner's characterization of Mitchell's billing practices as possibly dishonest. Mitchell's itemized billing entry descriptions pertaining to the motion for attorney's fees indicate reasonably necessary work accomplished in a reasonable number ...

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