United States District Court, D. New Mexico
ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR
William P. Lynch United States Magistrate Judge
Anthony Rodriguez filed an opposed motion for an award of
attorney's fees under the Equal Access to Justice Act
(“EAJA”), 28 U.S.C. § 2412. (Doc. 30.) The
Commissioner of the Social Security Administration
(“Commissioner”) filed a response (Doc. 31), and
Rodriguez filed a reply (Doc. 32).
counsel reports that she “expended a total of 48.40
hours providing professional services” at “the
applicable EAJA rate of $192.00 per hour” for a total
of “$9, 292.80” in fees, but “is reducing
the total by 5% in order to avoid a potential appearance of
over[-]reaching and is requesting a fee in the amount of $8,
824.16.” (Doc. 30 at 2 (emphasis
omitted).) She also seeks “costs in the amount
of $413.61.” (Id.) The motion includes as an
exhibit a Declaration of Time that logs the hours counsel
spent on the case in increments of 1/10 of an hour and
includes the items billed as costs. (Doc. 30-2.)
Commissioner objects because the number of hours Plaintiff
requested is unreasonable given the average-length record,
the standard arguments Plaintiff presented, and
Plaintiff's counsel's familiarity with the underlying
facts and issues in this case.” (Doc. 31 at 1.) She
cites specific instances of overbilling, a recent District of
New Mexico case calculating that courts in the Tenth Circuit
have held that the average time required to fully brief a
social security appeal is 20 to 40 hours, and argues that
“the Court should reduce the requested amount to no
more than 40 hours at the requested $192.00 per hour, for a
maximum attorney fee award of $7, 680.00.”
(Id. at 4 (emphasis omitted).)
reviewed the briefing, record, and applicable law, I find
that an award of fees is appropriate, but the amount of fees
requested is unreasonable. Therefore, I grant in part and
deny in part the motion.
EAJA provides for an award of attorney fees to a plaintiff
when: 1) he is the 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 should be
“reasonable.” Comm'r, INS v. Jean,
496 U.S. 154, 161 (1990); Hackett, 475 F.3d at 1168.
The applicant bears the burden of establishing entitlement to
an attorney-fee award, documenting the appropriate hours
expended, and showing that the hours are reasonable.
Hensley v. Eckerhart, 461 U.S. 424, 433 (1983).
“[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, 297 F.
App'x 807, 809 (10th Cir. 2008) (unpublished) (citing
Jean, 496 U.S. at 161). Determining the
reasonableness of the number of hours billed lies within the
Court's discretion. Jean, 496, U.S. at 161
(citing Hensley, 461 U.S. at 437).
reviewing counsel's Declaration of Time, I find that fee
reduction is warranted in three categories-clerical work,
brief preparation, and costs. I address each in turn.
award is appropriate for clerical work. Dalles Irrigation
Dist. v. United States, 91 Fed.Cl. 689, 708 (2010)
(“[T]he filing of pleadings is considered clerical
work” and is not compensable under EAJA); see
Gatson v. Bowen, 854 F.2d 379, 381 (10th Cir. 1988)
(remanding EAJA-fees petition and noting the distinction
between work that is “clerical rather than
legal”); Sorenson v. Concannon, 161 F.Supp.2d
1164, 1168-69 (D. Or. 2001) (reducing EAJA-fees request for
work that was “purely clerical in nature”).
is a table listing three entries that qualify as clerical. I
have included the amount of hours counsel billed
(“Claimed”) and the corresponding permissible fee
award (“Compensable”). The total reduction in
time is three hours.
Initial review of admin[.] record, prepare working
Study and note admin[.] record for brief preparation
Review file, prepare and submit notice of briefing
(Doc. 30-2 at 1, 3.)
note that this Court has admonished counsel at least twice
that billing for reviewing the administrative record is not
compensable under the EAJA. Kuykendall v. Colvin,
No. 13-cv-877 MV/WPL, Doc. 35 at 3 (D.N.M. Apr. 7, 2015);
Romero v. Colvin, No. 11-cv-994 JB/SMV, Doc. 43 at 4
(D.N.M. Mar. 20, 2014).
is also warranted for counsel's time for her
brief-in-chief. “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 exercise
“billing judgment” and do not bill clients for
every hour expended in litigation. Ellis v. Univ. of Kan.
Med. Ctr., 163 F.3d 1186, 1202 (10th Cir. 1998) (quoting
Malloy v. Monahan, 73 F.3d 1012, 1018 (10th Cir.
1996)). 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, and Courts have a corresponding duty to exclude
hours “not reasonably expended” from the
calculation. Id. (quotation omitted).
counsel's brief-in-chief (Doc. 17) with the entries in
her Declaration of Time reveals that three entries should be