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Vining v. Colvin

United States District Court, D. New Mexico

May 22, 2017

JAIME S. VINING, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration, Defendant.



         THIS MATTER comes before the Court on Plaintiff's “Motion for Award of Attorney Fees Pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412(d)” (“Motion”). [Doc. No. 33] Plaintiff moves the Court for an award of $5, 678.00 in attorney fees and costs under the Equal Access to Justice Act (“EAJA”). [Pl.'s Mot. 2-3, Doc. No. 33] Having reviewed the record, the briefing, and the relevant law, and being otherwise fully advised in the premises, the Court finds that the Motion should be granted in part and denied in part.


         EAJA provides for an award of attorney fees to a plaintiff when: (1) she is a prevailing party, (2) the position of the United States was not substantially justified, and (3) no special circumstances would make the award unjust. 28 U.S.C. § 2412(d)(1)(A); Hackett v. Barnhart, 475 F.3d 1166, 1172 (10th Cir. 2007). However, the fees awarded should in all cases be “reasonable.” Comm'r, INS v. Jean, 496 U.S. 154, 161 (1990); Hackett, 475 F.3d at 1168. “[O]nce the determination has been made that the government's position was not substantially justified, then the court should determine what fee is merited for all aspects of the litigation that deal with creating a benefit to the claimant.” Gallaway v. Astrue, Nos. 08-5080, 08-5082, 297 F. App'x 807, 809, 2008 WL 4726236, at *2 (10th Cir. Oct. 28, 2008) (unpublished) (citing Jean, 496 U.S. at 161). Determining the reasonableness of the number of hours billed lies within the Court's discretion. Hensley v. Eckerhart, 461 U.S. 424, 437 (1983) (interpreting attorney fees request under 42 U.S.C. § 1988); see also Jean, 496 U.S. at 161 (explaining that once a litigant has established eligibility for fees under the EAJA, “the district court's task of determining what fee is reasonable is essentially the same as that described in Hensley”).

         “In awarding fees under the EAJA, [courts] have a special responsibility to ensure that taxpayers are required to reimburse prevailing parties for only those fees and expenses actually needed to achieve the favorable result.” Role Models Am., Inc. v. Brownlee, 353 F.3d 962, 975 (D.C. Cir. 2004). The Tenth Circuit recognizes that attorneys typically do not bill a client for every hour expended in litigation, and they should exercise “billing judgment” regarding the amount of hours actually billed. Ellis v. Univ. of Kan. Med. Ctr., 163 F.3d 1186, 1202 (10th Cir. 1998) (citing Hensley, 461 U.S. at 437). To show appropriate billing judgment, an attorney should make a good-faith effort to exclude those hours from the request that are excessive, redundant, or otherwise unnecessary. Id. The Court has a corresponding obligation to exclude hours “not reasonably expended” from the calculation. Id. The Tenth Circuit has directed the district courts to approach this reasonableness inquiry “much as a senior partner in a private law firm would review the reports of subordinate attorneys when billing clients.” Robinson v. City of Edmond, 160 F.3d 1275, 1281 (10th Cir. 1998) (quoting Ramos v. Lamm, 713 F.2d 546, 555 (10th Cir. 1983)).

         II. ANALYSIS

         In this case, Plaintiff requests $5, 678.00 for a total of 29.8 hours of work, of which 21.8 hours were completed in 2015 at $190 per hour and 8.0 hours were performed in 2016 at $192 per hour. [Pl.'s Mot. Ex. 1 at 3-4] The Commissioner objects only to the number of hours requested. [See Def.'s Resp. 1, Doc. No. 35] She does not challenge the hourly rates, nor does she argue that her position was substantially justified. [Id.] She asks the Court instead to exercise its discretion to reduce the number of hours by approximately 5.5 hours, for a maximum fee award of $4, 628.80. [Id.] Furthermore, the Commissioner contends that Plaintiff's counsel “failed to exercise billing judgment and, as such, the Court should excise the billing entries that are not reasonable.” [Id. at 3.] She then details the following billing entries as warranting reduction or excision:

(1) May 2, 2015: Telephone conference with client; preparation of retention letter, fee agreement, EAJA assignment; 0.7 hour
(2) June 6, 2015: Attention to correspondence from client; preparation of complaint and motion for leave to proceed in forma pauperis; attention to filing of complaint and IFP motion; 1.2 hours
(3) June 8, 2015: Attention to correspondence; notice of assignment of magistrate; order on IFP motion; order for service of process; 0.1 hour
(4) June 15, 2015: Attention to correspondence; notice of judge reassignment; 0.1 hour
(5) June 17, 2015: Attention to correspondence; rule 73 entries; order referring case to magistrate; 0.1 hour
(6) June 17, 2015: Preparation of summons; 0.2 hour
(7) June 18, 2015: Attention to correspondence; issued ...

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