Opinion
Civil Action No. 17-1803-JDB
2021-08-24
Tabitha PEYTON, Plaintiff, v. Kilolo KIJAKAZI, Acting Commissioner of the Social Security Administration, Defendant.
Jonathan Heuer Levy, Jennifer F. Mezey, Legal Aid Society of the District of Columbia, Washington, DC, for Plaintiff. Margaret Winslow Reed, Paul Kendall Nitze, Social Security Administration Office of the General Counsel, Region III, Philadelphia, PA, for Defendant Nancy A. Berryhill.
Jonathan Heuer Levy, Jennifer F. Mezey, Legal Aid Society of the District of Columbia, Washington, DC, for Plaintiff.
Margaret Winslow Reed, Paul Kendall Nitze, Social Security Administration Office of the General Counsel, Region III, Philadelphia, PA, for Defendant Nancy A. Berryhill.
ORDER
JOHN D. BATES, United States District Judge
Before this Court is a Report and Recommendation from Magistrate Judge Zia M. Faruqui, dated February 28, 2021, recommending that this Court grant plaintiff's motion for attorneys’ fees in part and award a sum of $10,098.30. The Court agrees with this outcome and will adopt this Report and Recommendation in full.
In adopting Judge Faruqui's Report and Recommendation, the Court understands his recommendation to be based on an individualized analysis of the facts of this case and the specifics of the fee request at issue. The Court does not understand Judge Faruqui to have applied a presumption of unreasonableness for requests outside of a "guideline range" of twenty to forty hours in "routine" cases. This Court will not adopt such a presumption here. A default rule setting a presumptive upper limit on fees for "routine" Social Security cases may be inconsistent with the individualized consideration required in assessing motions for attorneys’ fees under the Equal Access to Justice Act. See Costa v. Comm'r of Soc. Sec. Admin. , 690 F.3d 1132, 1136 (9th Cir. 2012) (per curiam) ("[I]t is ... an abuse of discretion to apply a de facto policy limiting social security claimants to twenty to forty hours of attorney time in ‘routine’ cases.... While district courts may consider [a guideline range] in determining the reasonableness of a specific fee request, courts cannot drastically reduce awards simply because the attorney has requested compensation for more than forty hours or make reductions with a target number in mind."); see also Brooks v. Berryhill , Civ. A. No. 15-cv-436 (CKK/GMH), 2017 WL 10716887, at *12 (D.D.C. Oct. 26, 2017) (rejecting notion that a social security claimant bears "the burden of showing that his or her case should be treated as ‘above average,’ and therefore eligible for compensation higher than the average for past fee awards"), adopted by District Court , 2019 WL 120767 (D.D.C. Jan. 7, 2019).
The Court does not understand Judge Faruqui's Report and Recommendation to have applied or endorsed such a default rule, and it adopts his recommendation in full based on his well-reasoned assessment of the facts of this case. Accordingly, upon consideration of [29] the Report and Recommendation from Magistrate Judge Faruqui, the absence of any objections thereto, and the entire record herein, it is hereby
ORDERED that the Report and Recommendation is ADOPTED in full; it is further
ORDERED that [26] plaintiff's Motion for Attorney Fees is GRANTED IN PART and DENIED IN PART; it is further
ORDERED that plaintiff be awarded a total of $10,098.30 in attorneys’ fees; and it is further
ORDERED that judgment be entered accordingly.
SO ORDERED.
REPORT AND RECOMMENDATION
ZIA M. FARUQUI, UNITED STATES MAGISTRATE JUDGE
Tabitha Peyton ("Plaintiff") brought this federal court action challenging the denial by the Commissioner of the Social Security Administration ("Defendant" or "SSA") of disability benefits under Title II of the Social Security Act, 42 U.S.C. § 405(g). In March 2020, this Court adopted the Report and Recommendation of Magistrate Judge Deborah A. Robinson and remanded the case back to the agency to address the deficiencies of the Administrative Law Judge's ("ALJ") decision. In June, Ms. Peyton petitioned for payment of her attorneys’ fees under the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412. Defendant only disputes the reasonableness of the number of hours requested. The undersigned finds the number of hours requested by Ms. Peyton to be unreasonable and recommends that her petition for fees be granted in part and denied in part.
BACKGROUND
In 2013, Ms. Peyton applied for disability benefits. See ECF No. 8 (Administrative Record) at 141. Defendant denied the application both initially and on reconsideration. See AR 81, 90. Following a hearing, which generated a 510-page administrative record, an ALJ also denied Ms. Peyton's application for benefits and the SSA Appeals Council denied her request for review. See AR 1, 10.
The Administrative Record includes nine exhibits attached to ECF No. 8. For ease of reference, citations to the Administrative Record will refer to the "AR" and cite the consecutive page numbers provided in the lower right-hand corner of each page of the AR.
In proceedings before this Court, Ms. Peyton submitted a 17-page Motion for Judgment of Reversal, arguing the ALJ (1) failed to appropriately analyze evidence and (2) posed inaccurate hypothetical questions to the vocational expert. See ECF No. 13 (Pl.’s Mot. J. Reversal) at 7–15. Defendant submitted a 20-page motion and memorandum in opposition to Ms. Peyton's request. See ECF No. 19 (Def.’s Mot. J. Affirmance). Ms. Peyton responded with a 21-page opposition and reply, see ECF No. 21 (Pl.’s Reply), and the government returned a 12-page reply. See ECF No. 23 (Def.’s Reply).
In March 2020, after reviewing the parties’ extensive briefing and the record, Magistrate Judge Robinson agreed with Ms. Peyton's second argument (she did not address Ms. Peyton's first challenge) and recommended remand. See ECF No. 24 (R. & R.) at 8. Judge John D. Bates adopted the recommendation in full and remanded the case to the agency. See ECF No. 25 (Order) at 1.
In June 2020, Ms. Peyton filed for attorneys’ fees under the EAJA. See ECF No. 26 (Pl.’s Mot. Att'ys’ Fees). Ms. Peyton seeks compensation for 164.2 hours of legal work by four attorneys amounting to $33,661.00 in attorneys’ fees. See ECF No. 28 (Pl.’s Reply Att'ys’ Fees) at 1–2. Specifically, Ms. Peyton spent 157.2 hours spent on the merits and preparing the EAJA application, see Pl.’s Mot. Att'ys’ Fees, Exh. A (Decl. of Jonathan Levy) at 10–13 (hereinafter "Levy Decl."), and 7 hours on a Reply to Defendant's Opposition to her application, see Pl.’s Reply Att'ys’ Fees at 1.
Ms. Peyton has been represented by the Legal Aid Society of the District of Columbia ("Legal Aid"), a nonprofit that charges no fees for legal services provided to its low-income clients. See Levy Decl. at 2–3. Andrew Patterson served as primary counsel for Ms. Peyton on the merits of the case, aided by two supervising attorneys, Jennifer Mezey and Jonathan Levy. Id. at 2. The petition for EAJA attorneys’ fees was primarily handled by Marian Messing, the Sidley Austin Appellate Advocacy Fellow at Legal Aid. Id. at 3.
Defendant concedes Ms. Peyton is entitled to some attorneys’ fees but argues the court should only award compensation for 40 hours ($8,200.00). See ECF No. 27 (Def.’s Opp'n) at 9.
LEGAL STANDARD
The EAJA provides, in pertinent part, that "a court shall award to a prevailing party other than the United States fees and other expenses ... incurred by that party ... unless the court finds that 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). "[F]ees and other expenses" include "reasonable attorney fees." Id. § 2412(d)(2)(A). A court calculates a reasonable fee by multiplying the number of hours reasonably expended on litigation by a reasonable hourly rate. See Hensley v. Eckerhart , 461 U.S. 424, 433, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). This rate is based on "prevailing market rates for the kind and quality of the services furnished, except that ... attorney fees shall not be awarded in excess of $125 per hour unless the court determines that an increase in the cost of living ... justifies a higher fee." 28 U.S.C. § 2412(d)(2)(A).
"[T]he fee applicant bears the burden of establishing entitlement to an award and documenting the appropriate hours expended ...." Hensley , 461 U.S. at 437, 103 S.Ct. 1933. Plaintiff's counsel must provide evidence of the hours worked, see id. at 433, 103 S.Ct. 1933, with sufficient detail to enable a reviewing court to fairly assess the merits of a plaintiff's motion, see In re Olson , 884 F.2d 1415, 1428 (D.C. Cir. 1989) (per curiam). Once this burden is met, it shifts to the party opposing the fee petition to rebut the reasonableness of the requested award. Covington v. District of Columbia , 57 F.3d 1101, 1109–10 (D.C. Cir. 1995).
District courts have discretion in determining the reasonable amount of a fee award and will reduce the number of hours (1) to reflect the degree of success obtained by a plaintiff's counsel, see Hensley , 461 U.S. at 440, 103 S.Ct. 1933, and (2) to exclude those hours that are "excessive, redundant, or otherwise unnecessary," id. at 434, 103 S.Ct. 1933. A successful plaintiff's counsel is expected to exercise "billing judgment" by charging one's adversary only those hours that would be appropriate to bill to one's client. Id.
DISCUSSION
The only extant issue is the reasonableness of Ms. Peyton's requested hours. Defendant argues 164.2 hours is "unreasonable on its face." Def.’s Opp'n at 8. The undersigned agrees in part, as set forth below for three reasons.
It is undisputed that: Ms. Peyton is a "prevailing party" under the EAJA; Defendant's position was not "substantially justified;" and there are no "special circumstances" that make an award of fees unjust. See 28 U.S.C. § 2412(d)(1)(A) ; Def.’s Opp'n at 1. Nor does Defendant challenge the hourly rate requested by Ms. Peyton's counsel—$205 per hour—which they derive from the CPI-U for the Washington, D.C. area in 2018. See Pl.’s Mot. Att'ys’ Fees at 15; Def.’s Opp'n at 1 (conceding that Ms. Peyton is entitled to some attorneys’ fees and raising only the reasonableness of Ms. Peyton's requested number of hours). "[S]ince the Government does not object to plaintiff's CPI calculations, the Court will not question or recreate the calculations." Torres v. Barnhart , No. 02-cv-9209, 2007 WL 1810238, at *15 (S.D.N.Y. June 25, 2007).
Given that Ms. Peyton achieved remand of her client's case to the agency, the undersigned makes no reductions based on lack of success. The fact that Judges Robinson and Bates only ruled on one of Ms. Peyton's two issues does not reduce the award. See Hensley , 461 U.S. at 435, 103 S.Ct. 1933 ("Litigants in good faith may raise alternative legal grounds for a desired outcome, and the court's rejection of or failure to reach certain grounds is not a sufficient reason for reducing a fee. The result is what matters.").
A. Inadequate Justification for Departure from the Guideline Range
Hours spent litigating a case that does "not raise any extraordinarily difficult or complex legal or factual issues" generally should not exceed the 20 to 40 hour "guideline range." Banks v. Berryhill , No. 10-cv-6462, 2017 WL 3917141, at *3 (S.D.N.Y. June 30, 2017) (quoting Sava v. Comm'r of Soc. Sec. , No. 06-cv-3386, 2014 WL 129053, at *3 (S.D.N.Y. Jan. 10, 2014) ) (internal quotation marks omitted); see also Crim v. Comm'r of Soc. Sec. , No. 11-cv-137, 2013 WL 1063476, at *4 (S.D. Ohio Mar. 14, 2013) ("[T]he number of hours expended in pursuit of most social security appeals is in the range of ‘twenty to thirty hours,’ with forty hours topping out the high end of what has been described as an average range.") (quoting Glass v. Sec'y of HHS , 822 F.2d 19, 20 (6th Cir. 1987) ) (internal citation omitted). However, this guideline range does not act as a cap "on fees in ‘routine’ cases," Brooks v. Berryhill , No. 15-cv-436, 2017 WL 10716887, at *12 (D.D.C. Oct. 26, 2017), report and recommendation adopted , 2019 WL 120767 (D.D.C. Jan. 7, 2019). At bottom, the question is "whether the petition for fees is based on a reasonable rate for a reasonable number of hours for the tasks performed." Id. Factors the court may consider include, inter alia , "the length of the administrative record, the stage of litigation at which counsel became involved, the extent of the attorney's success and the difficulty of the questions presented." Banks , 2017 WL 3917141, at *3. Courts often reduce atypical time requests to the guideline range if the requests lack sufficient explanation of why the additional time was reasonably needed. See id. (citing Sava , 2014 WL 129053, at *3 ).
Ms. Peyton seeks compensation for 164.2 hours, which is more than double the highest previous hour-award granted by this Court in comparable cases. To justify the number of hours, Ms. Peyton relies on the complexity of her case, as evidenced by the number of issues raised (2 issues), see Pl.’s Reply Att'ys’ Fees at 5, length of the administrative record (510 pages), see id. , and length of Defendant's Motion for Judgment of Affirmance (17 pages), see id. at 7. None of Ms. Peyton's proffered metrics explain why her case was so complex as to deserve substantially more hours beyond the guideline range.
As evidence of the reasonableness of her request, Ms. Peyton relies on one instance when this Court granted 262.75 hours in a Social Security case. See Pl.’s Reply Att'ys’ Fees at 4–5 ("Indeed, this Court not only has awarded fees for far more than 40 hours in Social Security cases, but also has done so in at least one case also litigated by Legal Aid." (citing Harvey v. Berryhill , No. 13-cv-1957, 2017 WL 2560909 (D.D.C. June 13, 2017) )). Harvey is inapposite because it involved a category of legal issues—whether the agency had denied the plaintiff due process when it dismissed the request for an administrative hearing and whether the court had subject matter jurisdiction—that are rarely ever seen in Social Security proceedings and far more technical than the questions at hand. The next highest award in a similar case of which the court is aware was 75.51 hours. See Opinion & Order at 10, Kyler v. Colvin , No. 13-cv-750 (D.D.C. Oct. 7, 2014).
First, the number of issues does not support Ms. Peyton's position. In a similar social security case, a successful attorney raised 15 challenges in an arguably more complex matter yet requested less than 60 hours. See R. &. R. at 2, Skvorak v. Berryhill, No. 16-cv-044 (D.D.C. Jul. 10, 2017) , report and recommendation adopted , 264 F. Supp. 3d 12 (D.D.C. 2017). As to the length of the record, a similarly—if not more—complex case with an administrative record of 826 pages only justified a 40-hour award. See Brooks , 2017 WL 10716887, at *12. Finally, as to the length of Defendant's opposition, Ms. Peyton herself cites a case that involved a 23% longer opposition where counsel requested 66% fewer hours than the number requested here. See Pl.’s Reply Att'ys’ Fees at 7 (citing R. & R. at 12, Skvorak , No. 16-cv-044 (involving a request of 56.86 hours for a case involving a 21-page opposition)). Ultimately, the above-referenced metrics support an increase above the guideline range but do not justify an award four to five times higher.
Ms. Peyton argues this case should not have been litigated at all and faults Defendant for failing to notify Ms. Peyton that it would not dispute that its position was not "substantially justified" for the purposes of the EAJA application. See Pl.’s Reply Att'ys’ Fees at 6–8. This argument is without merit. It is well within Defendant's discretion, if not its duty, to defend the agency's decision. Simply because it chooses to concede that its position is not "substantially justified" for the purposes of attorneys’ fees does not amount to litigation brought in bad faith. See Nat'l Ass'n of Concerned Veterans v. Sec'y of Defense , 675 F.2d 1319, 1331 (D.C. Cir. 1982) (encouraging "parties to narrow the issues that must be brought before the District Court" in fee litigation). Although Defendant's choice to litigate does increase the possible number of hours Ms. Peyton may recover, it does not change the requirement that the number of hours must be reasonable. See Hensley , 461 U.S. at 437, 103 S.Ct. 1933 ("A request for attorney's fees should not result in a second major litigation.").
B. Failure to Provide Sufficient Detail
For the fee applicant to carry her "burden of ... documenting the appropriate hours expended," Hensley , 461 U.S. at 437, 103 S.Ct. 1933, time entries must provide "sufficient detail and probative value to enable the court to determine with a high degree of certainty that such hours were actually and reasonably expended." Hernandez v. Chipotle Mexican Grill, Inc. , 257 F. Supp. 3d 100, 110 (D.D.C. 2017) (internal quotations omitted).
Ms. Peyton's timesheets are insufficiently descriptive. The meager descriptions include:
- Thirteen entries totaling 43.5 hours for "Brief drafting;"
- Eight entries totaling 20 hours for "Legal research;" and
- Nine entries totaling 43.5 hours for "Drafting reply brief."
See Levy Decl. at 10–11. These bare-boned descriptions provide no insight into the reasonableness of the 107 hours spent on these tasks. See Pursuing Am.’s Greatness v. Fed. Election Comm'n , 463 F. Supp. 3d 11, 20 (D.D.C. 2020) (reducing the overall award due to generic, limited descriptions such as "research" and "related research").
C. Duplicative and Unreasonable Hours
Ms. Peyton's timesheets reveal duplicative and unnecessary hours billed. Throughout drafting the Motion for Judgment of Reversal, there are five separate rounds of edits by two supervising attorneys. See Levy Decl. at 10. Such excessive editing appears duplicative and unnecessary when dealing with the well-trodden issues at hand. See Hensley , 461 U.S. at 434, 103 S.Ct. 1933 ("Counsel 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.").
Finally, 34.5 hours spent on the EAJA application and reply is plainly unreasonable. Cf. Motion for Attorney's Fees, Attachment 1 at 1, Porter v. Astrue , 999 F. Supp. 2d 35 (D.D.C. 2013) (1.9 hours requested for drafting EAJA fee pleading); Motion for Attorney's Fees, Attachment 2 at 1, Skvorak v. Berryhill , 264 F. Supp. 3d 12 (D.D.C. 2017) (four hours requested to prepare EAJA petition and exhibits). This is especially true because much of the language used in Ms. Peyton's documents was recycled from previous briefs submitted by Ms. Peyton's counsel. For example, Ms. Peyton cited the same case law and followed the same format in arguing that this case was complex and that the government's litigating stance was unreasonable. Compare e.g. , Pl.’s Reply Att'ys’ Fees, Bethel v. Saul , No. 18-cv-247 (D.D.C. Jan. 30, 2020) ("The Government's primary argument that the number of hours for which Ms. Bethel seeks fees exceeds an ‘objectively reasonable number of hours,’ which the Government asserts is 15 to 40 hours, ... is improper."), with Pl.’s Reply Att'ys’ Fees at 2 ("The Government's primary argument – that the number of hours for which Ms. Peyton seeks fees exceeds an "objectively reasonable number of hours," which the Government asserts is 15 to 40, Gov't Opposition (Doc. 27) at 1 – is improper."). Recycling prior pleadings is neither improper nor discouraged, but it demonstrates that 34.5 hours was unnecessary to make the requisite EAJA arguments.
RECOMMENDATION
Courts are empowered to make percentage reductions of unreasonable fee requests "without performing an item-by-item accounting." Copeland v. Marshall , 641 F.2d 880, 903 (D.C. Cir. 1980) (en banc). In view of the deficiencies described above—failure to justify the extreme departure from the guideline fee range, inadequate description provided in over 100 hours of billing entries, and the duplicative/unreasonable time spent on tasks—the undersigned recommends reimbursement for 30% of the hours Ms. Peyton requests. See Role Models Am., Inc. v. Brownlee , 353 F.3d 962, 973 (D.C. Cir. 2004) (reducing the requested hours by 50% for similar deficiencies). Even with such reduction, this award still falls above the standard range of social security case awards. This departure from the guideline range is justified in part because Ms. Peyton's counsel had to engage in additional review of the record to identify, organize, and present observations and opinions of Ms. Peyton's treating psychiatrist and community support specialist that the SSA ignored. See Pl.’s Mot. Att'ys’ Fees at 12. Their thorough and successful representation is not overlooked.
The undersigned is concurrently issuing a Report and Recommendation in two other social security cases involving similar reductions in EAJA applications by Legal Aid. See Stubbs v. Saul , No. 18-cv-1457 (D.D.C. filed June 20, 2018); Bethel v. Saul , No. 18-cv-247 (D.D.C. filed Feb. 2, 2018).
For the foregoing factors and considerations, the undersigned finds the requested 164.2 hours to be unreasonable and recommends that Ms. Peyton's motion be GRANTED IN PART and DENIED IN PART, and that she be awarded attorneys’ fees for 49.26 hours at a rate of $205 per hour, for a total of $10,098.30.
REVIEW BY THE DISTRICT COURT
The parties are hereby advised that under the provisions of Local Rule 72.3(b) of the United States District Court for the District of Columbia, any party who objects to the Report and Recommendation must file a written objection thereto with the Clerk of this Court within 14 days of the party's receipt of this Report and Recommendation. The written objections must specifically identify the portion of the report and/or recommendation to which objection is made and the basis for such objections. The parties are further advised that failure to file timely objections to the findings and recommendations set forth in this report may waive their right of appeal from an order of the District Court that adopts such findings and recommendation. See Thomas v. Arn , 474 U.S. 140, 144–45, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985).