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Tobeler v. Colvin

United States District Court, D. Nevada

October 21, 2014

CRAIG TOBELER, Plaintiff,
v.
CAROLYN W. COLVIN, Commissioner of Social Security, Defendant.

ORDER

VALERIE P. COOKE, Magistrate Judge.

Before the court is plaintiff's motion for attorney fees (#51)[1] in a case concerning Social Security benefits. Defendant opposes a portion of the fees plaintiff seeks. (#54). The action was referred by the Honorable Larry R. Hicks, United States District Judge, to the undersigned Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rules IB 1-4. For the reasons discussed below, the court grants plaintiff's motion for fees and costs in the respective amounts of $16, 713.43 and $1, 378.51.

I. FACTUAL AND PROCEDURAL HISTORY

On June 10, 2009, Plaintiff Craig Tobeler ("plaintiff") filed a complaint for judicial review of the Social Security Commissioner's ("defendant") denial of his applications for Social Security benefits. (#1). Magistrate Judge Robert McQuaid entered a Report and Recommendation to District Judge Edward Reed on October 12, 2010 in favor of defendant. (#26). Plaintiff objected, and Judge Reed sustained the objection and ordered remand to the Agency. (#29). Thereafter, plaintiff moved for fees under 28 U.S.C. § 2412, the Equal Access to Justice Act ("EAJA"). (#32). On April 17, 2012, Judge Reed denied the fees motion. (#41). Plaintiff appealed to the Ninth Circuit. On April 14, 2014, the Ninth Circuit ruled in his favor and remanded for an award of fees as determined by the District Court. (#45). This action follows.

II. DISCUSSION

The EAJA provides attorney fees to the prevailing party in an action seeking review of an adverse Social Security benefits determination, unless the Agency's position was substantially justified. See 28 U.S.C. § 2412(d)(1)(A). The touchstone of the award is reasonableness. See id. § 2412(d)(2)(A) (providing that recoverable fees and expenses include "reasonable attorney fees"); Hensley v. Eckerhart, 461 U.S. 424, 434 (1983) ("The district court... should exclude from this initial fee calculation hours that were not reasonably expended.'"). To determine reasonableness, the court uses the lodestar method, under which the reasonable number of hours are multiplied by a reasonably hourly rate. Costa v. Comm'r of Soc. Sec. Admin, 690 F.3d 1132, 1135 (9th Cir. 2012). The lodestar amount is presumptively correct, but the court may modify the amount based on factors discussed in Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 70 (9th Cir. 1975) when the initial lodestar calculation inadequately reflects pertinent considerations. Mendez v. Cnty. of San Bernadino, 540 F.3d 1109, 1129 (9th Cir. 2008).

The sole issue before the court is the amount of plaintiff's fees under the EAJA. The parties agree to taxation of costs in the amount of $1, 378.51, as provided by 28 U.S.C. § 1920.[2] Relying on the lodestar method, plaintiff seeks fees in the amount of $16, 989.91 for services rendered by lead counsel John Boyden and appellate counsel Linda Ziskin. (#51 at 10). Defendant contends that plaintiff's motion unreasonably seeks payment for (1) certain tasks related to extension requests; (2) bill preparation by Ms. Ziskin; (3) Ms. Ziskin's services that preceded federal court litigation by several months; (4) tasks that are vaguely described; (5) Ms. Ziskin's duplicative review of the record; (6) excessive time spent by Mr. Boyden and Ms. Ziskin discussing a mediation questionnaire; and (7) excessive time Ms. Ziskin spent reviewing the Ninth Circuit's order remanding this case. (#54 at 3-5). In total, defendant seeks a reduction of $2, 045.70. (#54 at 5).

1. Requests for Extension of Time.

Defendant requests reduction of 1.7 hours for time related to extension requests. (#54 at 3). The court finds a reduction unwarranted. The court granted several extensions in this case, to both parties, and in each instance the parties conferred and entered stipulations. Extensions in Social Security cases are not only routine in this district, but also are part of an attorney's obligation to the client and thus are properly recoverable. E.g. Fouissi v. Astrue, No. 1:07cv0445 DLB, 2008 WL 2018344, at *2 (E.D. Cal. May 6, 2008); Fortes v. Astrue, No. 08cv317 BTM(RBB), 2009 WL 3007735, at *3 (S.D. Cal. Sept. 17, 2009). The court finds 1.7 hours a reasonable amount of time for these tasks, and therefore declines to reduce the award.

2. Bill Preparation.

Defendant next seeks a reduction of one hour for Ms. Ziskin's preparation of the supplemental time log and discussion of hours with Mr. Boyden. (#54 at 3). The court declines to reduce for this hour. Attorney time records should be compiled contemporaneously with the attorney's work, and attorneys may not charge clients for overhead costs like maintaining time records. See Reyna v. Astrue, No. 1:09-cv-00719-SMS, 2011 WL 6100609, at *4 (E.D. Cal. Dec. 6, 2011). However, certain billing tasks related to EAJA fees motion may be properly billable, as attorneys must review time logs for accuracy and ensure that the motion and logs reveal no privileged information. See Fortes, 2009 WL 3007735, at *4. In this instance, the court finds the one hour request reasonable, as the description suggests that Ms. Ziskin was preparing and ensuring the accuracy of the supplemental log, and also discussing with Mr. Boyden which hours would be sought in the EAJA motion.

3. Ms. Ziskin's Pre-Litigation Hours.

Defendant challenges.7 hours sought for Ms. Ziskin's services in May 2009 (#54 at 3), which she described as reviewing the ALJ's decision "for possible USDC complaint" and discussing possible case issues with Mr. Boyden. (#52-3 at 3). The court disagrees with defendant's position. As the Supreme Court has explained, "some of the services performed before a lawsuit is formally commenced by the filing of a complaint are performed on the litigation.'" Webb v. Bd. of Educ. of Dyer Cnty., Tenn., 471 U.S. 234, 243 (1985); see also Berman v. Colvin, 2014 WL 4809886, at *4 (D. Nev. Sept. 29, 2014) (observing that pre-filing work may focus on contemplated district court litigation or the underlying administrative ...


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