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Trivino v. Colvin

United States District Court, D. New Mexico

January 22, 2018

CLAUDE EDWARD TRIVINO, Plaintiff,
v.
CAROLYN COLVIN, Acting Commissioner of Social Security, Defendant.

          MEMORANDUM OPINION AND ORDER

          MARTHA VAZQUEZ UNITED STATES DISTRICT JUDGE.

         THIS MATTER comes before the Court on Plaintiff's “Opposed Motion for Equal Access to Justice Award of Attorney's Fees and Costs” (“Motion”) [ECF No. 36], filed on October 31, 2016. The Commissioner responded on November 14, 2016. ECF No. 38. Plaintiff replied on November 16, 2016. ECF No. 39. Plaintiff moves the Court for an award of $10, 117.11 in attorney fees and costs under EAJA. Pl.'s Mot. 2-3, ECF No. 36. 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.

         I. STANDARD OF REVIEW

         The Equal Access to Justice Act (“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 Gallaway v. Astrue, Nos. 08-5080, 08-5082, 297 F. App'x 807, 809, 2008 WL 4726236, at *2 (10th Cir. Oct. 28, 2008) (unpublished) (citing Jean, 496 U.S. at 161).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”).

         II. ANALYSIS

         “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)).

         In this case, Plaintiff requests $10, 117.11 for 53.1 hours of work total, of which 45.85 hours was completed in 2015 at $190 per hour and 7.25 hours was performed in 2016 at $192 per hour. Pl.'s Mot. Ex. 2 at 3. The figure also incorporates postage costs of $13.61. Id. The Commissioner objects only to the number of hours requested. See Def.'s Resp. 1-3, ECF No. 38. 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 ten, for a maximum fee award of $8, 200. Id. at 1. Furthermore, the Commissioner “contends that counsel's overall time spent on this matter was excessive given the fairly routine nature of this disability appeal.” Id. at 2. She then details the following six billing entries as warranting reduction or excision:

(1) April 16, 2015 - Thirty (30) minutes to review Answer;
(2) September 18 - October 16, 2015 - Twelve hours spent on a reply brief that actually exceeded the length of the Commissioner's Response;
(3) October 6, 2015 - Thirty (30) minutes relating to Plaintiff's Motion for an Extension of Time;
(4) October 17, 2015 - Thirty (30) minutes for reviewing the docket, review the file, prepare and submit notice of briefing complete;
(5) April 28, 2016 - 1.5 hours to review magistrate judge's Proposed Findings and Recommended Disposition (“PFRD”);
(6) 2016 (unspecified) - One hour for numerous telephone ...

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