Summary
finding fifty-one hours reasonable where brief was lengthy, administrative record was lengthy, and counsel was experienced
Summary of this case from Brandon v. ColvinOpinion
1:06-cv-00778-SMS.
July 3, 2008
Plaintiff is represented by counsel and proceeded with an action in which the Court reviewed a final decision of the Commissioner of Social Security (Commissioner) and, by judgment entered on September 24, 2007, ordered the matter remanded pursuant to sentence four of 42 U.S.C. § 405(g) for the Commissioner to award forthwith benefits to Plaintiff from May 20, 2002, onward. Pursuant to 28 U.S.C. § 636(c)(1), the parties have consented to the jurisdiction of the Magistrate Judge to conduct all proceedings in this matter, including ordering the entry of final judgment.
The matter is currently before the Court on Plaintiff's motion for attorney's fees and costs under the Equal Access to Justice Act, filed on November 5, 2007, along with declarations of Henry Reynolds and Brian Zeiden, Plaintiff's counsel. Defendant filed a memorandum in response to the motion on December 5, 2007. The Court raised the issue of the timeliness of the motion and directed the parties to brief the issue; an additional briefing order was also directed to Defendant after the filing of Defendant's first supplemental brief on March 10, 2008. Defendant filed a second supplemental brief on March 20, 2008, and Plaintiff filed a supplemental brief on March 26, 2008. On June 26, 2008, the Commissioner filed a supplemental brief addressing the necessity of reaching an issue; because the Commissioner waived the issue, it was not necessary for a responsive brief to be filed by Plaintiff, who filed no responsive brief.
I. Background
The Court's decision and order granting Plaintiff the full relief requested was sixty-eight pages long. Plaintiff mounted successful challenges to the ALJ's numerous reasons for his credibility findings, the ALJ's rejection of numerous opinions of Plaintiff's treating and examining physicians, and the evidence provided by the testimony of a vocational expert. The Court took the relatively rare step of ordering an award of benefits outright.
II. Timeliness of Application for Fees
Judgment was entered on September 24, 2007, and the instant motion for attorney's fees was filed on November 5, 2007.
With respect to fees awarded under the EAJA, 28 U.S.C. § 2412(d)(1)(A) provides:
Except as otherwise specifically provided by statute, a court shall award to a prevailing party other than the United States fees and other expenses, in addition to any costs awarded pursuant to subsection (a), incurred by that party in any civil action (other than cases sounding in tort), including proceedings for judicial review of agency action, unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust.
With respect to the time for filing, § 2412(d)(1)(B) states in pertinent part:
A party seeking an award of fees and other expenses shall, within thirty days of final judgment in the action, submit to the court an application for fees and other expenses which shows that the party is a prevailing party and is eligible to receive an award under this subsection, and the amount sought, including an itemized statement from any attorney or expert witness representing or appearing in behalf of the party stating the actual time expended and the rate at which fees and other expenses were computed.
An application is to be submitted within thirty days of final judgment in the action. "Final judgment" within the meaning of § 2412(d) refers to a judgment that is final and no longer appealable. 28 U.S.C. § 2412(d)(2)(G). The time for submitting the application begins to run after the district court enters judgment and the appeal period has run. Shalala v. Schaefer, 509 U.S. 292, 302 (1993); Melkonyan v. Sullivan, 501 U.S. 89, 102 (1991); Akopyan v. Barnhart, 296 F.3d 852, 854 (9th Cir. 2002). In a civil case to which a federal officer is a party, the time for appeal does not end until sixty days after entry of judgment, which in turn requires entry of a separate document. Fed.R.App.P. 4(a)(1), (7); Fed.R.Civ.P. 58; Shalala v. Schaefer, 509 U.S. 302-03.
Here, sixty days had not passed after the entry of judgment on September 24, 2007, when Plaintiff filed the motion for fees on November 5, 2007.
However, as Plaintiff notes, the filing of a motion for fees before the finality of judgment is not excluded by the express words of the statute, which require its submission "within thirty days of final judgment." Filing the motion on November 5, 2007, was within thirty days of the finality of the judgment, which was achieved by the passage of time on or about November 23, 2007.
Further, although no definitive and binding authority from this circuit has been cited to the Court, courts have found timely an application for fees that was filed even before a judgment in the form of the necessary separate document had been entered. Shalala v. Schaefer, 509 U.S. 302, 302-03 (noting that an EAJA application may be filed "until 30 days after a judgment becomes "not appealable" — i.e., 30 days after the time for appeal has ended" (emphasis added)); Koch v. United States Department of Interior, 47 F.3d 1015, 1021 (10th Cir. 1995) (interpretingShalala v. Schaefer as resolving the question of whether or not a party may ask for fees before thirty days after entry of judgment have passed if the party has achieved prevailing party status).
Defendant did not raise the prematurity of the motion in its opposition filed a month after the motion was filed. In its first supplemental brief, Defendant stated that Plaintiff's application was prematurely filed but stated that the Court's consideration thereof would be appropriate under the EAJA. (Supp. Brief filed March 10, 2008, pp. 1-2.)
The Court concludes that the motion for fees was timely filed.
III. EAJA Fees
The Court concludes that Defendant's position in the underlying case, which was set forth in full briefing on the merits, was not substantially justified, and Defendant does not contend otherwise.
Further, Plaintiff was a prevailing party within the meaning of the statute because Plaintiff obtained a judgment in Plaintiff's favor pursuant to sentence four of 42 U.S.C. § 405(g). Shalala v. Schaefer, 509 U.S. 292, 298-99.
Finally, the parties have not suggested that there are any circumstances making an award unjust, and the Court finds that there are no such circumstances.
Defendant opposes the application for fees on the ground that the amount of fees requested is unreasonable.
Fees awarded under the EAJA must be reasonable. Perez-Arellano v. Smith, 279 F.3d 791, 793 (9th Cir. 2002). A district court's task of determining what fee is reasonable is essentially the same as that described in Hensley v. Eckerhart, 461 U.S. 424, 433-437 (1983). Commissioner, I.N.S. v. Jean, 496 U.S. 154, 160-161 (1990). The district court has discretion to determine the amount of the fee and to reduce the amount to be awarded or deny an award to the extent that the prevailing party has unduly and unreasonably protracted the final resolution of the matter in controversy. Id. at 161. Absent unreasonably dilatory conduct by the prevailing party in any portion of the litigation which would justify denying fees for that portion, a fee award presumptively encompasses all aspect of the civil litigation. Id. This includes fees for preparation of a fee application and its ensuing efforts to support that same application. Id.
"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). Hours that are excessive, redundant, or otherwise unnecessary should be excluded. Id. at 434. The Court must consider the results obtained, and, as appropriate, a court may also consider the time and labor required, the novelty and difficulty of the questions, the skill requisite to perform the legal service properly, the preclusion of other employment due to acceptance of the case, the customary fee, whether the fee is fixed or contingent, time limitations imposed by the client or circumstances, the amount involved and the results obtained, experience and ability of the attorneys, the undesirability of the case, awards in similar cases. Id. at p. 434 n. 9.
Plaintiff seeks $8,383.42 for 51.45 hours, consisting of 39.4 hours in 2006 at a rate of $161.88 per hour, and 12.05 hours in 2007 at $166.43 per hour. Plaintiff also seeks by way of supplemental application an additional $1,080.00, consisting of 0.6 hours at $167.62 per hour in 2007, and 5.8 hours at $168.98 per hour in 2008, for a total of 6.4 additional hours.
Defendant does not object to the hourly rates or increase factors as calculated by Plaintiff.
With respect to the initial application, the Court finds that the brief was lengthy, the issues were numerous and factually complex, and the administrative record was also lengthy (550 pages). The briefing of Plaintiff's attorney was of high quality; Plaintiff's counsel was experienced and able. The expenditure of approximately fifty-one hours was generally reasonable under the circumstances.
Defendant argues that counsel should not be compensated for pre-retainer time, and Defendant objects to an award of 4.4 hours consisting of three hours for reviewing the case and deciding to take the case on June 6, 2006; and one hour for compiling a sign-up letter, in forma pauperis, fee agreement, and mailing to the client on June 8, 2006.
It is reasonably inferred that review of the "case" involved review of documents pertaining to the case. Counsel was not Plaintiff's representative at the administrative level; Plaintiff's case had been remanded once by the Appeals Council before the decision reviewed by this Court was rendered. Only thirty-two and one-half hours were claimed by counsel for preparation of the opening brief; thus, review of the "case" for several hours more, in light of the extensive record, procedural posture of the case, and nature of the issues, was reasonable. It is recognized that an attorney's pre-complaint efforts to investigate, undertake legal research, and conduct informal discovery relevant to developing a case are properly recoverable; an attorney has an obligation pursuant to Fed.R.Civ.P. 11 to ascertain that claims to be asserted are warranted under the law and the facts. Lucas v. White, 63 F.Supp.2d 1046, 1058-59 (N.D.Cal. 1999). Counsel's review of the case was sufficiently analogous pre-complaint effort.
The Court agrees that one hour to "compile" a sign-up letter, ifp, fee agreement, and to mail them to the client is excessive; compilation (as distinct from drafting) and mailing three short documents would reasonably take a quarter of an hour. Thus, three-quarters of an hour will be deducted from the total hours allowed.
Defendant argues that a third of an hour spent calling the client, getting a "busy" signal, and calling the client to give counsel's e-mail address on June 14 and 15, 2006, should not be compensated because it is unlikely that a private attorney would charge his clients for this. This Court agrees with Defendant's statement that billing judgment is an important component in fee-setting, and hours that are not properly billed to one's client are not properly compensated under the EAJA. Hensley v. Eckerhart, 461 U.S. 424, 434 (1983). However, attorneys routinely bill for communications with clients. The Court concludes that billing for a total of twelve minutes for a telephone call from a client, and for a telephone call to a client to transmit an e-mail address, is not unreasonable. Billing for six minutes for a single call to the client and receiving a "busy" signal appears to be excessive and not normally subject to being billed, and thus one-tenth of an hour will be deducted.
Defendant argues that counsel should not be compensated for 0.8 hours spent sending and receiving e-mails with the client between July and November 2006, "prior to briefing and when the case was not active." (Opp. p. 5.) E-mails to and from the client on July 22 were itemized as e-mails to and from the clients regarding status; they occurred a couple of days after proof of service and consent to Magistrate jurisdiction was filed. It is natural for a client to have questions about the status of a case early in the proceedings, and it appears that Plaintiff and his attorney communicated efficiently because only twelve minutes were claimed for the entire exchange by counsel. E-mails to and from the client were also exchanged on August 28, 2006; again, it is not unreasonable for an attorney to bill a client for twelve minutes of communication. The Court does not find this excessive at this stage in the case. The two later e-mail exchanges on October 6 and November 15 occurred before the brief was filed on November 30. However, Defendant mistakenly describes the case as inactive or infers that the exchange could not have been substantive at this point. Indeed, pursuant to the Court's scheduling order, at this stage of the proceedings, the parties were engaged in confidential settlement processes that reasonably could be expected to have entailed communication on substantive matters. The Court concludes that Plaintiff has sufficiently demonstrated that this time was reasonably expended.
Defendant argues that counsel should not be compensated for 0.5 hours, consisting of 0.1 hour each for viewing documents that counsel did not prepare and which are standard to litigation practice before this Court: a notice of appearance filed by Defendant's counsel, a notice of lodging the administrative record, a text message concerning that filing, Defendant's consent to Magistrate Judge jurisdiction, and an order reassigning the case to the Magistrate Judge. The Court agrees that a private attorney exercising reasonable billing judgment would not bill half of an hour for viewing such routine documents. The Court finds that 0.1 hour is a reasonable amount of time to be expended on such tasks. Thus, the Court will reduce the requested hours by 0.4 hour.
With respect to billing for briefing, attorney Zeiden worked for 24.5 hours on drafting the opening brief, and attorney Reynolds edited the opening brief for eight hours; attorney Zeiden drafted the reply brief for 2.75 hours, and attorney Reynolds edited it for two hours; and both attorneys billed at the same rate. Defendant argues that the hours were duplicative and thus ten hours (representing attorney Reynolds' time) should not be the basis for an award of fees.
Mr. Reynolds signed the briefs, and thus his participation was required. More fundamentally, in light of the entire file in this case, the total number of hours spent on the briefing was reasonable. Defendant's contention is without merit.
The Court notes that the reduction of 1.25 hours for activity in 2006 will be at the 2006 rate of $161.88. The Court will subtract $202.35 from the amount requested in the initial application, leaving $8,181.07 as a total amount approved in the initial application.
IV. Supplemental Application
Plaintiff moved for additional fees of $1,080.00 for 6.4 hours of work performed after the initial application, including conferring with Plaintiff, reviewing Defendant's pleadings regarding fees, responding to the Court's orders regarding supplemental briefing concerning prematurity of the application, and preparing the supplemental application. Defendant has not objected to this supplemental application. It is established that attorneys' fees may be awarded for counsel's time spent in applying for the EAJA award. Commissioner, I.N.S. v. Jean, 496 U.S. 154, 157 (1990) (concession that services to obtain fees were covered in EAJA cases, but the Court determined that this was the case regardless of substantial justification as to the government's resistance to the fee award); Ramirez v. Secretary of Health and Human Services, 1988 WL 95926, *2 (C.D.Cal. 1988) (citing Jensen v. Stangel, 790 F.2d 721 (9th Cir. 1986) for the proposition that fee petition preparation fees are authorized in civil rights cases under 42 U.S.C. § 1983, and Prandini v. National Tea Company, 585 F.2d 47 (3d Cir. 1978), for the principle that hours spent on fee applications are generally compensable in statutory fee award cases).
Here, the timing of the petition for fees was within Plaintiff's control, and the question of the timeliness of the petition should have been briefed initially. The time expended in preparing the supplemental brief was excessive. The Court concludes that three hours were reasonably spent in preparing the brief, and thus will reduce the number of hours requested in the supplemental application by 3.4 hours expended in 2008.
The reduction of 3.40 hours for activity in 2008 will be at the 2008 rate of $168.98.
Thus, the total amount of fees to be awarded pursuant to the supplemental application will be $505.00.
V. Payment of Fees to Counsel
Plaintiff has assigned to counsel fees paid under the EAJA and thus requests that Defendant be ordered to make any such payment directly to counsel. The parties had not briefed the issue of the propriety of such payment, and in response to the Court's request, Defendant stated in a supplemental brief filed on June 26, 2008, that for this case only, the Commissioner waives the issue regarding assignment of attorney's fees under the EAJA, 28 U.S.C. § 2412(d)(2)(B), foregoes strict compliance with the Anti-Assignment Act, 31 U.S.C. § 3727, and does not desire that the Court reach this issue in this case.
In light of the assignment and Defendant's waiver of the issue, it will be ordered that the fees be paid directly to counsel.
VI. Disposition
Accordingly, it IS ORDERED that Plaintiff's application for attorney's fees under the EAJA IS GRANTED in part, and the Court APPROVES an award of $8,181.07 for Plaintiff's initial application, and an award of $505.00 for Plaintiff's supplemental application, for a total award of $8,686.07, to be paid to counsel for Plaintiff, Henry Favill Reynolds, of the Law office of Henry Reynolds.
IT IS SO ORDERED.