Opinion
CV-21-01654-PHX-GMS
10-28-2022
David Michael Gibson, Plaintiff, v. Commissioner of Social Security Administration, Defendant.
ORDER
G. Murray Snow, District Judge.
Pending before the Court is Plaintiff's Motion for Attorney Fees under the Equal Access to Justice Act, 28 US.C § 2412 (“EAJA”) (Doc. 22). For the following reasons, the Motion is granted in part and denied in part.
I. Background
On July 12, 2022, this Court reversed and remanded a decision of the Social Security Commissioner pursuant to sentence four of 42 U.S.C. § 405(g). In light of that Order, both parties agreed that an EAJA attorney fee award is proper. The dispute is whether Plaintiff's counsel, Mr. Joel N. Reissner, should be compensated for the 3.4 hours of work his firm spent drafting this Motion for Attorney Fees
To the extent that the parties' characterizations of their conversations align, the relevant facts are as follows: On July 6, 2022, Mr. Robert Deutsch gave Assistant United States Attorney Jessica Milano a proposal for EAJA compensation that contained a flat fee. In response, Ms. Milano requested a time ledger documenting the hours Mr. Deutsch spent on D.M.G.'s case. He responded with a “reconstructed ledger” and asked for the same fee. Two days later, the parties had a phone call where they discussed the government's Motion for Remand, which was filed on July 11, 2022, and granted the next day.
Although Mr. Reissner was counsel of record, he assigned the case to his colleague, Mr. Robert Deutsch, who handled all communication between their office and defense counsel.
The disagreement is in the details. Mr. Deutsch says that he mentioned his EAJA proposal during the parties' July 8th phone call and claims Ms. Milano said that she had not reviewed his ledger because she had deadlines in other cases. He says that he did not receive further communication about the EAJA award after this exchange. Ms. Milano says that after the Court entered its July 12th Order, she emailed Mr. Deutsch and informed him that “following some pressing deadlines, she would have an opportunity to review the time sheets and discuss an EAJA stipulation.” On July 21, 2022, Mr. Deutsch filed this Motion for Attorney Fees.
II. Legal Standard
“A court shall award to a prevailing party . . . fees and other expenses . . . incurred by that party in any civil action[,] . . . including proceedings for judicial review of agency action, brought by or against the United States in any court having jurisdiction of that action.” 28 US.C § 2412(d). When an individual prevails on remand after being awarded relief against the Social Security Administration under 42 U.S.C. § 405(g), sentence 4, he is entitled to an award of fees and costs provided that (a) he has a net worth under $2,000,000 and (b) the government's position was not substantially justified. 28 US.C §2412(d)(1)(D)(2)(B), (d)(1)(B). “Where fees are requested under a federal fee-shifting statute such as the EAJA, the Court has an independent duty to review the fee request to determine its reasonableness.” (Doc. 23 at 2); see Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). The moving party bears the burden of showing that its request for fees is reasonable.
An EAJA award is payable to the plaintiff's attorney pursuant to the assignment of attorney fees, as long as the plaintiff has no federal debt that mandates an offset. Blackwell v. Astrue, No. CIV 08-1454 EFB, 2011 WL 1077765, at *5 (E.D. Cal. Mar. 21, 2011). Here, Plaintiff properly assigned fees to Mr. Reissner. (Doc. 22-1 at 3.)
III. Discussion
The EAJA's statutory requirements are satisfied, and there is no meaningful dispute about Mr. Deutsch's rate, which is $217.54 for services rendered in 2021 and $231.49 for services rendered in the first half of2022. See Statutory Maximum Rates Under the EAJA, https://www.ca9.uscourts.gov/attomeys/statutory-maximum-rates/ (last visited Oct. 11, 2022). Thus, the Court's remaining task is to determine “whether the number of hours billed was reasonable.” Lema v. Comfort Inn Merced, No. 1:10-CV-00362-SMS, 2014 WL 1577042, at *5 (E.D. Cal. Apr. 17, 2014). Generally, “[c]ounsel for the prevailing party should make a good faith effort to exclude from a fee request hours that are excessive, redundant, or otherwise unnecessary, just as a lawyer in private practice ethically is obligated to exclude such hours from his fee submission.” Hensley, 461 U.S. at 433 (1983). An important additional factor in a court's reasonableness inquiry is whether the hours were “expended in pursuit of the ultimate result achieved.” Id. at 435. Ultimately, “[t]here is no precise rule or formula for making” determinations about attorney fees, but a district court's discretion should be guided by the considerations identified in Hensley. Id. at 436.
A motion for attorney fees can be filed up to 90 days after a court issues an order for remand. Lizardi v. Wilkinson, 986 F. 3rd 1294 (9th Cir. 2021). Mr. Deutsch indicated that Ms. Milano told him she would review his time ledger, albeit without specifying a time frame in which she would do so. But, even if Plaintiff's counsel had no indication of whether or when his offer would be accepted, reasonable counsel would have realized that Ms. Milano was not opposed to a settlement offer and, therefore, would have waited more than nine days before filing a motion for attorney fees. More to the point, reasonable counsel would not have charged a private client for filing a motion that was highly likely to be unnecessary. Id. at 434 (noting that “‘billing judgment' is an important component in fee setting” for private clients and should be no less important when courts evaluate statutory awards for attorney fees). It is also relevant that Plaintiff's counsel's efforts were not expended in pursuit of the ultimate result achieved-here, the reversal of the Social Security Commissioner's decision. Finally, even if the Court were not inclined to accept the government's other arguments, it would have subtracted the amount at issue for Deutsch's failure to keep contemporaneous time records.
CONCLUSION
IT IS HEREBY ORDERED that Plaintiff's Motion for Attorney Fees under the Equal Access to Justice Act (Doc. 22) is GRANTED in part and DENIED in part. Plaintiff's counsel is awarded $6,319.11 for fees and expenses pursuant to 28 US.C § 2412 and $420.40 pursuant to 28 US.C § 1920.
IT IS FURTHER ORDERED if, after receiving this Order, the Commissioner (1) determines upon effectuation of the Court's EAJA fee Order that Plaintiff does not owe a debt that is subject to offset under the Treasury Offset Program, and (2) agrees to waive the requirements of the Anti-Assignment Act, the EAJA fees will be made payable to Plaintiff's attorney of record. However, if there is a debt owed under the Treasury Offset Program, the Commissioner cannot agree to waive the requirements of the AntiAssignment Act, and the remaining EAJA fees after offset will be paid by a check made out to Plaintiff but delivered to Plaintiff's attorney.