United States District Court, D. New Mexico
ORDER GRANTING IN PART PLAINTIFF'S MOTION FOR
ATTORNEY FEES PURSUANT TO EAJA
HONORABLE CARMEN E. GARZA CHIEF UNITED STATES MAGISTRATE
MATTER is before the Court on Plaintiff Steven Roy
Christanelli's Motion for Attorney Fees
Pursuant to EAJA, with Supporting Memorandum (the
“Motion”), (Doc. 26), filed November 8, 2019;
Defendant Commissioner Andrew Saul's Response to
Plaintiff's Request for Attorney Fees Pursuant to the
Equal Access to Justice Act (the
“Response”), (Doc. 27), filed November 22, 2019;
and Plaintiff's Reply to Defendant's
Response to Request for Attorney Fees Pursuant to
EAJA (the “Reply”), (Doc. 28), filed
November 25, 2019. In her Motion, Plaintiff's counsel
requests the Court award her $9, 697.50 in attorney fees, for
47.55 billable hours of work performed before this Court in
litigating Plaintiff's Social Security appeal. (Doc. 26
at 2). The Commissioner argues this amount is unreasonable
and instead recommends Plaintiff's counsel be awarded $7,
140 for 35 hours worked. (Doc. 27 at 2-3). Having reviewed
the parties' filings and the relevant law, the Court
finds that the Motion shall be GRANTED IN
PART and Plaintiff shall be awarded a fee totaling
$8, 463.30 for 41.5 billable hours.
instituted an action in this Court on August 30, 2018,
seeking judicial review of Defendant's denial of his
application for supplemental security income. (Doc. 1). On
August 13, 2019, this Court granted Plaintiff's request
for relief, and remanded the case to the Commissioner for
further proceedings. (Docs. 24, 25). Plaintiff's case has
not yet been re-adjudicated by the Commissioner, but the
Court's Order granting his Motion for Remand renders him
a prevailing party for purposes of collecting attorney fees
under the Equal Access to Justice Act (“EAJA”).
In the present Motion, Plaintiff's counsel requests $9,
697.50 for her work before the Court. (Doc. 26). Defendant
disputes only the amount of time Plaintiff's attorney
billed for drafting the Motion to Remand and Plaintiff's
Reply. (Doc. 27 at 3).
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). Defendant does not contest that
these three factors are satisfied, and thus does not dispute
that Plaintiff's counsel is entitled to an award of
attorney fees under EAJA. (Doc. 27 at 2). However, Defendant
argues that the number of hours Plaintiff's counsel
billed for her work in this case are excessive and her award
should be less than what she has requested. Id.
evaluating the number of hours spent by counsel for an award
of attorney fees, the guiding standard is one of
“reasonableness.” Malloy v. Monahan, 73
F.3d 1012, 1018 (10th Cir. 1996) (interpreting attorney-fee
request under 42 U.S.C. § 1988); see also
Commissioner, I.N.S. v. Jean, 496 U.S. 154, 161 (1990)
(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 [under 42 U.S.C. § 1988]”). The determination
of reasonableness requires the Court to assess a
“reasonable number of hours spent on the litigation,
” while exercising “billing judgment with respect
to a claim of the number of hours worked.”
Malloy, 73 F.3d at 1018.
demonstrate she has exercised appropriate billing judgment,
an attorney should exclude hours from her fee request that
are “excessive, redundant, or otherwise
unnecessary.” Ellis v. University of Kansas Medical
Center, 163 F.3d 1186, 1202 (10th Cir. 1998). “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). As such, the Court is obligated
to exclude hours that are not “reasonably
expended” from the final fee award calculation.
Ellis, 163 F.3d at 1202.
attorney requests 47.55 hours for her work before this Court,
including 32.8 hours for drafting and preparing her opening
brief and 12.45 hours in drafting her reply. (Doc. 26-1 at
1-3). Defendant argues the Court should award Plaintiff's
counsel fees for 35 hours of work completed, for a total
award of $7, 140. (Doc. 27 at 3). This figure, Defendant
contends, is more reasonable given counsel's experience
representing Social Security disability litigants.
Id. In her reply, Plaintiff's counsel admits
that attorneys in this district are typically awarded EAJA
fees for no more than 40 billable hours when litigating a
Social Security appeal. (Doc. 28 at 1). However,
Plaintiff's counsel argues she is entitled to an award of
fees greater than the regional average because the
Administrative Record was unduly large, she was not familiar
with the evidence, and the issues presented were not
“routine.” (Doc. 28 at 1-3).
Court agrees that the Administrative Record in this case was
larger than ordinary, totaling over 2, 000 pages.
See (Doc. 28 at 2). This could, in the Court's
experience, require more time to properly parse through the
Administrative Record and ascertain the relevant information.
Conceivably, a more voluminous Administrative Record may add
one or two hours to an otherwise streamlined review. The
Administrative Record's volume, however, does not wholly
justify the higher-than-normal fees Plaintiff's counsel
has requested. Indeed, if the Court permits 1.5 additional
hours to be billed due to the larger Administrative Record in
this case, Plaintiff's counsel is still 6.05 hours over
the average amount of time attributed to a Social Security
disability appeal. See Martinez v. Colvin, 2016 WL
9774938, at *2 (D.N.M. Nov. 30, 2016) (unpublished)
(collecting cases) (“Courts have held the average
number of hours required to fully brief a Social Security
appeal in the Tenth Circuit generally range from 20 to 40
hours.”); Wellman v. Colvin, 13-cv-1122 KBM,
Doc. 25 at 2 (D.N.M. June 15, 2015) (unpublished)
(“Courts generally have determined a range of 20-40
attorney hours as reasonable in pursuing a disability
Court is not convinced that Plaintiff's counsel's
additional arguments justify her six-hour billing excess.
Specifically, after reviewing the briefing and the
Court's Order remanding Plaintiff's case, the issues
before the Court were no more complex than in the usual
Social Security disability appeal. See (Doc. 19 at
1) (arguing the case should be remanded because (1) the ALJ
“failed to use correct legal standards in weighing the
treating and examining source evidence”; (2)
“[t]he RFC finding is contrary to the substantial
evidence of record”; and (3) “[t]he Appeals
Council should have remanded this case under Lucia v.
SEC, 138 S.Ct. 2044 (2018).”). In addition, the
Court is not convinced by Plaintiff's counsel's
contention that because she was “not familiar”
with the evidence in the Administrative Record, she is
entitled to a larger fee. See (Doc. 28 at 2).
Ordinarily, with every new Social Security appeal client, the
attorney would be unfamiliar with the evidence in the record.
As a result, unfamiliarity with the record would not warrant
an enhanced award of attorney fees.
closing, the Court finds Plaintiff's counsel has not
demonstrated that she is entitled to an award of fees in
excess of the regional average. While Plaintiff's counsel
recognizes that the Court should consider the “hours a
reasonable attorney would have incurred and billed …
under similar circumstances, ” she does not direct the
Court to any relevant cases where an attorney was awarded
over 40 billable hours in EAJA fees. See (Doc. 28 at
3) (citing Robinson, 160 F.3d at 1281).
Counsel's failure to direct the Court to case law that
supports her contention is particularly compelling where, as
here, the burden to demonstrate the reasonableness of the fee
rests with Plaintiff. See Robinson, 160 F.3d at 1281
(explaining it is the applicant's burden to show that the
claimed rate and number of hours requested are reasonable).
Simply put, Plaintiff's counsel has not satisfied her
burden that the requested fee award is reasonable.