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Rodriguez v. Berryhill

United States District Court, D. New Mexico

August 1, 2017

NANCY A. BERRYHILL, [1] Acting Commissioner of the Social Security Administration, Defendant.


          William P. Lynch United States Magistrate Judge

         Plaintiff 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).

         Rodriguez's 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).)[2] 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.)

         “The 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).)

         Having 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.

         The 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).

         After 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.

         No 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”).

         Below 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.


Services Provided




Initial review of admin[.] record, prepare working index




Study and note admin[.] record for brief preparation




Review file, prepare and submit notice of briefing complete



(Doc. 30-2 at 1, 3.)

         I also 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).

         Reduction 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).

         Comparing counsel's brief-in-chief (Doc. 17) with the entries in her Declaration of Time reveals that three entries should be ...

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