Opinion
Case No. 3:18-cv-01022-JR
03-18-2020
AGNES R., Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
FINDINGS AND RECOMMENDATION :
Plaintiff sought judicial review of the Commissioner's final decision finding her not disabled prior to December 31, 2015, the date last insured. The ALJ determined plaintiff did not become disabled until October 1, 2016. Plaintiff asserted disability beginning November 18, 2012, and argued the Administrative Law Judge (ALJ) erred by improperly rejecting the medical opinion evidence, her subjective symptom testimony, and the lay witness statements, as well as crafting an unsupported residual functional capacity and determining the onset of disability without consulting a medical expert. The Court determined the ALJ did not err with respect to the medical opinion evidence but did improperly weigh plaintiff's subjective symptom testimony.
Plaintiff moved for, and was granted, attorney fees pursuant to the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412. Plaintiff now moves for supplemental attorney fees totaling $1715.70. Pl.'s Suppl. EAJA Appl. 1 (doc. 33). The Commissioner argues the award should be reduced by at least fifty percent because the number of hours billed is unreasonable or, alternatively, lacks sufficient documentation. Def.'s Resp. to Suppl. EAJA Appl. 2, 4 (doc. 37).
Under the EAJA, the court "shall award to a prevailing party other than the United States fees and other expenses . . . incurred by that party in any civil action . . . unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust." 28 U.S.C. § 2412(d)(1)(A); Meier v. Colvin, 727 F.3d 867, 870 (9th Cir. 2013). The court must determine what fee is reasonable, providing a "clear and concise" explanation of the award; however, the court need not portray its "discretionary analysis" as "elaborate mathematical equations." Sorenson v. Mink, 239 F.3d 1140, 1145 (9th Cir. 2001).
It is undisputed that plaintiff is the prevailing party and therefore entitled to attorney fees under the EAJA. It is further undisputed that fees-on-fees are available in the Social Security context. Accordingly, the issue before the Court is whether plaintiff's supplemental EAJA fee request is reasonable.
Plaintiff requests supplemental attorney's fees in the amount of $1715.70 - i.e., 8.4 hours, at the rate of $204.25 per hour. Pl.'s Suppl. EAJA Appl. 7 (doc. 33). The 8.4 hours are broken down into two separate entries: Plaintiff block billed 7.15 hours for reviewing defendant's response to the prior EAJA motion, researching substantial justification case law, and drafting the reply; and separately billed 1.25 hours for editing, revising, and filing the reply. Id. at 6; see also Ayala v. Cook Family Builders LLC, 2018 WL 1631453, *4 (D. Or. Mar. 6), adopted by 2018 WL1629863 (D. Or. Apr. 3, 2018) ("block billing is defined as any time entry of three or more hours . . . containing two or more tasks, where at least one of the tasks could have taken anywhere from a small to a substantial amount of time") (citation omitted).
This District specifically cautions practitioners against the practice of block billing:
[Block billing] makes assessing the reasonableness of the time spent on a particular task extremely difficult. The Court recommends that members of the bar record time spent on particular, individual tasks and support their fee petitions with a level of documentation that allows the Court, and opposing counsel, to adequately review the reasonableness of the time spent on a single task.Message from the Court Regarding Fee Petitions, U.S. Dist. Ct., Dist. of Or. (Mar. 2, 2017), https://www.ord.uscourts.gov/index.php/rules-orders-and-notices/notices/fee-petitions. As such, courts within this District routinely reduce any block billed periods in excess of three hours by fifty percent. See, e.g., Bepple v. Shelton, 2017 WL 2192267, *3 (D. Or. May 18, 2017); but see Ayala, 2018 WL 1631453 at *4 ("courts of the District of Oregon have . . . adopted the practice of eliminating block-billed time entries in their entirety from the lodestar calculation").
Here, the Court cannot assess the reasonableness of the majority of the requested hours due to plaintiff's block billing. Accordingly, consistent with District practice, the Court finds that reducing the block billed entry by fifty percent is appropriate in this case. As such, 3.5 hours should be allowed regarding the 7.15-hour block billed entry, resulting in a total of 4.75 hours for which plaintiff should receive fees (i.e., 3.5 hours for the block billed entry + 1.25 for the remaining entry = 4.75). Plaintiff should therefore receive a total award of $970.19.
RECOMMENDATION
For the reasons stated above, plaintiff's application for supplemental attorney fees (doc. 33) should be granted in part, in that EAJA fees should be awarded in the reduced sum of $970.19. If it is determined that plaintiff's EAJA fees are not subject to any offset allowed under the Department of the Treasury's Offset Program, as discussed in Astrue v. Ratliff, 560 U.S. 586 (2010), then the check for EAJA fees shall be made payable to Brian Wayson and Tiffany Blackmon, based upon plaintiff's assignment of these amounts to plaintiff's attorney. Any check for EAJA fees shall be mailed to plaintiff's counsel, Brian Scott Wayson, at PO Box 12028, Portland, Oregon 97212.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment or appealable order. The parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the court. Thereafter, the parties shall have fourteen (14) days within which to file a response to the objections. Failure to timely file objections to any factual determination of the Magistrate Judge will be considered as a waiver of a party's right to de novo consideration of the factual issues and will constitute a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to this recommendation.
DATED this 18th day of March, 2020.
/s/ Jolie A. Russo
Jolie A. Russo
United States Magistrate Judge