United States District Court, N.D. Oklahoma
OPINION AND ORDER
TERENCE KERN, UNITED STATES DISTRICT JUDGE.
the Court are (1) Plaintiff's Application for Award of
Attorney's Fees (“Fee Application”) (Doc. 22)
and (2) Plaintiff's Supplemental Application for Award of
Attorney's Fees (“Supplemental Fee
Application”) (Doc. 25).
April 12, 2017 the Court affirmed the Report and
Recommendation of United States Magistrate Judge T. Lane
Wilson (Doc. 19), which recommends that the
Commissioner's decision denying benefits be reversed and
remanded. (Doc. 20.) Plaintiff's Fee Application seeks an
award of $5, 918.40 for 30.7 hours of attorney time working
on the case in federal court pursuant to the Equal Access to
Justice Act, 28 U.S.C. § 2412 (“EAJA”).
Defendant Nancy A. Berryhill, Acting Commissioner of Social
Security (“Defendant”), filed a response
objecting to the amount of the fees sought in Plaintiff's
Fee Application. Defendant does not contest Plaintiff's
entitlement to attorney fees under EAJA or the rate charged
by Plaintiff's attorney (ranging from $190 to $195 per
hour). Defendant only argues that the number of hours claimed
in Plaintiff's Fee Application for various tasks is
unreasonable. In particular, Defendant objects to
Plaintiff's time claimed on (1) Plaintiff's opening
brief, (2) Plaintiff's reply brief, and (3) various other
tasks billed by Plaintiff's counsel at between 0.2 and
0.5 hours each, and contends Plaintiff should recover fees
for at most a total of 21.7 hours, or $4, 208.40.
seeking an award of attorney fees under EAJA bears the burden
of establishing the award sought is reasonable. See
Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). The fee
applicant must “document the appropriate hours
expended and hourly rates” and should “exercise
‘billing judgment' with respect to hours
worked.” Id. at 437. The court may reduce the
fee award to hours that were reasonably expended, rather than
hours actually worked. Id. at 433-34. Reasonable
fees are those a reasonable attorney would have incurred and
billed in the marketplace under similar circumstances.
Robinson v. City of Edmond, 160 F.3d 1275, 1281
(10th Cir. 1998).
Fee Application seeks an award of 13.9 hours for
counsel's work on Plaintiff's opening brief.
Defendant contends the brief contained only nine substantive
pages and Plaintiff should recover for no more than nine
hours. Defendant argues that Plaintiff's opening brief
duplicates work performed on Plaintiff's earlier
submission to the Appeals Council and suggests Plaintiff
“in essence, edit[ed] her Appeals Council brief for the
district court, ” which does not justify the request
for 13.9 hours. (Def.'s Resp. Obj. to Fee App. 3.)
Defendant contends the district court brief covers the same
issues and in one instance contains identical material to
part of the Appeals Council submission. In response,
Plaintiff explains that the 13.9 hours includes time spent by
Plaintiff's attorney personally reviewing the record in
detail, rather than relying on the review performed by a
legal assistant for the Appeals Council submission. Further,
Plaintiff shows the identical portion consists of quotes from
the medical record. The fact that the brief includes some of
the same issues as the Appeals Council brief is hardly
surprising and does not itself suggest that Plaintiff's
requested hours are unreasonable. See Cameron v.
Barnhart, 47 Fed.Appx. 547, 551-52 (10th Cir. Sept. 17,
2002) (unpublished) (finding that “counsel's time
spent researching and analyzing the issues presented in the
opening brief was not merely duplication of the time counsel
spent presenting petitioner's challenges to the Appeals
Council” and was “well within the bounds of
reasonable and necessary time spent on this activity”).
Defendant has only pointed to one example of supposedly
duplicative language, which Plaintiff reasonably explained.
Plaintiff's counsel's time records and
Plaintiff's explanation of the hours spent on the opening
brief suggest they are reasonable.
cites Farmer v. Astrue, No. 09-2505-JWL, 2010 WL
4904801, at *2 (D. Kan. Nov. 24, 2010), for the proposition
that 1.1 hours per page is an appropriate basis to award fees
under EAJA (presumably, Defendant's position is that only
substantive pages should count). The Court finds
Farmer to be of limited relevance here. In
Farmer, the court agreed with plaintiff that 1.1
hours per page was not an unreasonable time to spend writing
a Social Security brief. However, the court found a 29-page
statement of facts within a 45-page brief to be excessive and
reduced counsel's time awarded for drafting the fact
section. Defendant does not argue that Plaintiff's fact
section or opening brief is excessively long, nor that any
general rule exists limiting counsel's time on drafting
to 1.1 hours per substantive page. See Hamby v.
Astrue, No. 10-CV-158-SPS, 2011 WL 5040982, at *1 (E.D.
Okla. Oct. 24, 2011) (declining to determine reasonableness
based on “hours per page”). Therefore, the Court
will not apply such a limit here.
contends the 7.5 hours sought by Plaintiff for preparation of
Plaintiff's reply brief is unreasonable because the reply
brief contains only three substantive pages and lacks legal
citations or argument. Defendant again relies on
Farmer to suggest Plaintiff's requested hours
are excessive in proportion to the number of pages in the
reply brief. As noted above, Farmer does not
establish a general hours-per-page rule and is not
particularly apt here. Plaintiff argues in general terms that
reducing a longer draft to three pages can be time-consuming.
Plaintiff also indicates that the lack of legal citations was
due to space limitations, not the absence of any legal
research performed for the reply brief. Plaintiff's
proffered explanation is reasonable and, upon the Court's
review of her reply brief, the time sought is not excessive.
challenges counsel's time spent on various non-drafting
tasks, including seven separate charges of 0.2 or 0.3 hours
each for “R&R” (i.e.,
“receiving and reviewing”) various materials,
including two attorney entries of appearance (0.2 hours
each), a motion to substitute (0.2 hours), a minute order
striking a document (0.2 hours), and the order granting
substitution (0.2 hours). Plaintiff's counsel also seeks
0.3 hours for reviewing the Court's remand order and
judgment, which consisted of only a few sentences. Plaintiff
does not explain why receipt and review of these short
entries justified billing 0.2 to 0.3 hours each and therefore
has not met its burden to show the reasonableness of these
hours. See Peng See v. Colvin, No. 1:09-CV-1751 GSA,
2014 WL 2442578, at *7 (E.D. Cal. May 30, 2014) (reducing
hours for “check off tasks that should each take no
more than a few seconds to accomplish”). The Court
finds that counsel's receipt and review of each of these
six items were not reasonably billed above 0.1 hours each.
Accordingly, counsel's hours will be reduced by 0.7
hours. The Court finds Plaintiff's hours sought for other
tasks challenged by Defendant are within reasonable bounds
based on counsel's time records.