United States District Court, D. New Mexico
RONALD J. DALTON, Plaintiff,
NANCY A. BERRYHILL,  Deputy Commissioner for Operations of the Social Security Administration, Defendant.
ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR
ATTORNEY'S FEES PURSUANT TO THE EQUAL ACCESS TO JUSTICE
Fashing United States Magistrate Judge.
MATTER comes before the Court on plaintiff Ronald
Dalton's request for attorney's fees and costs
pursuant to the Equal Access to Justice Act, 28 U.S.C. §
2412, filed on March 5, 2018. Doc. 32. The Commissioner filed
her response to the motion on March 14, 2018. Doc. 33. Mr.
Dalton did not file a reply. The parties consented to my
entering a final judgment in this case. Doc. 18. Having
reviewed the parties' submissions and being fully
advised, I find that the amount of fees requested is
excessive and unreasonable. I therefore grant the motion in
part and deny the motion in part.
Dalton filed a Title II application for disability insurance
benefits and a Title XVI application for supplemental income
benefits on April 5, 2013, alleging disability since March 1,
2013, due to “leg injury resulting from being struck by
car on bicycle, hip problems, [and] back problems.” AR
26, 107, 110, 119, 1360-65. Mr. Dalton's application for
benefits was denied initially and upon reconsideration, and
he requested a hearing before an ALJ. AR 26-51, 54-64, 73. On
August 4, 2015, ALJ Deborah Rose conducted a hearing, at
which Mr. Dalton and Mary Diane Weber, a vocational expert,
testified. AR 1366-97. The ALJ issued her unfavorable
decision on December 7, 2015. AR 13-23. The Appeals Council
denied Mr. Dalton's request for review on February 25,
2016. AR 5-7.
Dalton appealed the Commissioner's decision to this
Court, raising eleven arguments on appeal. Doc. 20 at 1-2.
The Court ultimately reversed the Commissioner's decision
and remanded the case based on the ALJ's failure to
appropriately weigh the conclusions of examining physicians,
Drs. Rajesh and Krueger. Doc. 30.
now seeks attorney's fees and costs pursuant to the Equal
Access to Justice Act (“EAJA”). The Commissioner
opposes the motion on the grounds that the fees requested are
excessive and unreasonable. I agree that the fees requested
are excessive and unreasonable, and therefore grant
plaintiff's motion in part and deny it in part.
Standard of Review
provides for an award of attorney fees to a plaintiff when:
(1) he or she 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.
Once the court determines 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 Fed.Appx.
807, 809 (10th Cir. 2008) (unpublished). 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-fee 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 EAJA, “the district
court's task of determining what fee is reasonable is
essentially the same as that described in
Hensley”). “[T]he fee applicant bears
the burden of establishing entitlement to an award and
documenting the appropriate hours expended and hourly
rates.” Hensley, 461 U.S. at 437.
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 Kansas 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.
“A district court should 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)).
requests $9, 114.00 in fees for 55.2 hours of work. Doc. 32. The
Commissioner does not dispute that plaintiff was the
prevailing party, nor does she argue that the agency's
position was substantially justified. The Commissioner
contends, however, that the fees requested are excessive and
unreasonable. I agree.
have held the average hours required to fully brief a social
security appeal in the Tenth Circuit generally range from 20
to 40 hours. See Medina v. Astrue, 2010 WL 1254835,
at *3 (D. Colo. Mar. 26, 2010) (internal citations omitted);
see also Muller v. Colvin, 14-cv-0953 SMV, Doc. 29
at 2 (D.N.M. Jan. 27, 2016) (unpublished); Wellman v.
Colvin, 13-cv-1122 KBM, Doc. 25 at 2 (D.N.M. June 15,
2015) (unpublished); Villalobos v. Colvin,
15-cv-0463 CG, Doc. 32 at 8 (D.N.M. July 12, 2016)
(unpublished). More hours may be justified where the
administrative record is especially extensive or where novel
or complex issues are presented. Wellman, 13-cv-1122
KBM, Doc. 25 at 2.
the hours incurred by counsel significantly exceed the
average range of hours spent on similar cases. There was
nothing particularly unusual or complex about this case. The
arguments made were typical of Social Security disability
appeals. Although the record was longer than average-1, 397
pages long, Doc. 14-plaintiff's counsel represented
plaintiff at the administrative level as well as on appeal
and should have been familiar with the facts and issues
raised. Accordingly, counsel's billing of 8.25 hours to
review the administrative record and 29.00 hours to draft the
opening brief is excessive. Counsel's experience and
skill should decrease the need for hours spent on cases in
this area, which is highly repetitive. Faircloth v.
Barnhart, 398 F.Supp.2d 1169, 1172 (D.N.M. 2005).
reviewed the recent motions for attorney's fees in cases
I have decided with similar sized records and found that the
requests ranged from 20.7 hours to 32.34 hours. See
Ortega v. Social Security Administration,
1:15-cv-00862-LF, Doc. 33 (D.N.M. May, 9, 2017); Saenz v.
Social Security Administration, 1:15-cv-01034-LF, Doc.
36 (D.N.M. June 30 2017); Stanley v. Social Security
Administration, 1:15-cv-00834-LF, Doc. 32 (D.N.M. July
12, 2017). In all of the above cases, I ordered fees (based
on stipulation) ranging from $3, 933.00 to $6, 950.00. The
administrative records ranged from 1000 pages in
Saenz, 1221 pages in Ortega, to 1180 pages
in Stanley. The motion for remand in
Stanley raised seven issues in 26 pages.
1:15-cv-00834-LF, Doc. 20. The motion for remand in
Saenz raised four issues in 28 pages.
1:15-cv-01034-LF, Doc. 24. The motion for remand in
Ortega raised three issues in 23 pages.
1:15-cv-00862-LF, Doc. 17. In this case, plaintiff raised eleven
issues in 27 pages, Doc. 21, and, as noted above, the record
was 1, 397 ...