1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA

6

7 STEVEN HARRINGTON, Case No. 20-cv-04148-PJH 8 Plaintiff,

9 v. ORDER GRANTING MOTION FOR

ATTORNEYS’ FEES

10 ANDREW SAUL, Re: Dkt. No. 25 11 Defendant. 12

13 14 Before the court is plaintiff’s motion for attorneys’ fees pursuant to the Equal 15 Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d). The matter is fully briefed and 16 suitable for decision without oral argument. Having read the parties’ papers and carefully 17 considered their arguments and the relevant legal authority, and good cause appearing, 18 the court hereby GRANTS the motion for the following reasons. 19 BACKGROUND 20 On June 23, 2020, plaintiff appealed the decision from the Social Security 21 Administration that he was not eligible for disability benefits. Dkt. 1. On April 12, 2021, 22 plaintiff moved for summary judgment, and defendant cross moved for summary 23 judgment. Dkt. 20, 21. On March 14, 2022, this court granted plaintiff’s motion for 24 summary judgment, in part, and denied defendant’s motion for summary judgment in its 25 entirety. Dkt. 23 at 15. On May 31, 2022, plaintiff moved for attorneys’ fees, seeking an 26 award of $11,237.54. Dkt. 25 at 5. Defendant filed an opposition on June 16, 2022, and 27 plaintiff filed a reply on the same day. Dkt. 27, 28. 1 A. Legal Standard 2 The EAJA mandates an award of attorneys’ fees and expenses to a prevailing 3 party, other than the United States, in any civil action other than one sounding in tort 4 “brought by or against the United States . . . unless the court finds the position of the 5 United States was substantially justified or that special circumstances make an award 6 unjust.” 28 U.S.C. § 2412(d)(1)(A). 7 In making this determination, a court “must focus on two questions: first, whether 8 the government was substantially justified in taking its original action; and, second, 9 whether the government was substantially justified in defending the validity of the action 10 in court.” Gutierrez v. Barnhart, 274 F.3d 1255, 1258–59 (9th Cir. 2001) (internal citation 11 and quotation marks omitted). The government bears the burden of showing substantial 12 justification. Flores v. Shalala, 49 F.3d 562, 569 (9th Cir. 1995). 13 If fees are awarded under the EAJA, the court has considerable discretion in 14 determining the amount of the fee award, including the reasonableness of the fees 15 claimed by the prevailing party. Gates v. Deukmejian, 987 F.2d 1392, 1398 (9th Cir. 16 1992). In determining what constitutes a reasonable fee award, a court should consider 17 factors such as the number of hours requested and duplication of effort. Id. at 1397. A 18 court should not, however, apply a “de facto cap on the number of hours for which 19 attorneys may be compensated under the EAJA in a ‘routine’ case challenging the denial 20 of social security benefits. Rather individualized consideration must be given to each 21 case.” Costa v. Comm'r of Soc. Sec. Admin., 690 F.3d 1132, 1134 (9th Cir. 2012). A 22 court may impose “a small reduction, no greater than 10 percent—a ‘haircut’—based on 23 its exercise of discretion and without a more specific explanation.” Moreno v. City of 24 Sacramento, 534 F.3d 1106, 1112 (9th Cir. 2008). Greater reductions require “a more 25 specific articulation of the court’s reasoning.” Id. at 1111. 26 B. Analysis 27 Plaintiff moves for a total fee award of $11,237.54. Dkt. 25-1, ¶ 5. The parties do 1 1257 (stating, “[a]n applicant for disability benefits becomes a prevailing party for the 2 purposes of the EAJA if the denial of her benefits is reversed and remanded regardless 3 of whether disability benefits ultimately are awarded”). Defendant does not assert that 4 the government’s position was substantially justified or that special circumstances exist 5 here. The parties do not dispute that plaintiff counsel’s hourly rates are reasonable under 6 Ninth Circuit standards—$207.78 for 2020 and $217.54 for 2021 and 2022. Statutory 7 Maximum Rates Under the Equal Access to Justice Act, United States Courts for the 8 Ninth Circuit, https://www.ca9.uscourts.gov/attorneys/statutory-maximum-rates; See 8 9 U.S.C. § 2412 (d)(2)(A), Thangaraja v. Gonzales, 428 F.3d 870, 876–77 (9th Cir. 2005); 10 Ninth Circuit Rule 39-1.6. And plaintiff does not oppose defendant’s request that any 11 fees awarded be made payable to plaintiff if they are subject to the Treasury Offset 12 Program. Dkt. 27 at 2; Dkt. 28 at 12. 13 What the parties do dispute is the reasonableness of plaintiff’s proposed fee 14 award. Specifically, defendant argues plaintiff’s proposed fee award is unreasonable for 15 three reasons: (1) the number hours billed by counsel is too high given counsel’s 16 experience with social security cases and given the two “run-of-the-mill” issues raised in 17 this case; (2) plaintiff’s counsel billed for clerical work at an attorneys’ hourly rate; and (3) 18 plaintiff’s counsel billed .1 hours for perfunctory tasks. Dkt. 27 at 3–5. For these 19 reasons, defendant requests a fifty-percent reduction to plaintiff’s proposed fee award. 20 Id. at 5. 21 Under the EAJA, the prevailing party “bears the burden of establishing entitlement 22 to an award and documenting the appropriate hours expended and hourly rates.” 23 Hensley v. Eckerhart, 461 U.S. 424, 437 (1983). The prevailing party must exercise 24 “billing judgment,” i.e., only bill for work that would be billed to a private client. Id. at 434 25 (“Hours that are not properly billed to one’s client also are not properly billed to one’s 26 adversary pursuant to statutory authority.”). And the prevailing party should not seek 27 fees for work that is “excessive, redundant, or otherwise unnecessary.” Id. 1 25-1. A court “should defer to the winning lawyer’s professional judgment as to how 2 much time he was required to spend on the case.” Moreno, 534 F.3d at 1112. It is not 3 unusual for an attorney to bill over 50 hours for social security matters of this nature that 4 involve a voluminous record. See Valle v. Berryhill, No. 16-CV-02358-JSC, 2018 WL 5 1449414, at *2 (N.D. Cal. Jan. 18, 2018) (awarding fees based on 116.9 billable attorney 6 hours); Stevenson v. Astrue, No. C 10-04837 LB, 2012 WL 5412704, at *7 (N.D. Cal. 7 Nov. 6, 2012) (awarding fees based on 59.3 billable attorney hours). There is no basis to 8 call into question plaintiff counsel’s declaration, including counsel’s experience with social 9 security matters or the routine nature of this case. See Gregory S. v. Saul, No. 19-CV- 10 07543-JSC, 2021 WL 1668059, at *3 (N.D. Cal. Apr. 28, 2021) (awarding fees to counsel 11 experienced in social security matters because social security “cases involve a myriad of 12 complex legal issues as well as oftentimes a voluminous administrative record”). Indeed, 13 it is “an abuse of discretion to apply a de facto policy limiting social security claimants to 14 twenty to forty hours of attorney time in routine cases.” Costa, 690 F.3d at 1137 (internal 15 quotation marks omitted). Accordingly, the court does not find plaintiff’s proposed fee 16 award unreasonable because it is based on 51.8 billable attorney hours. 17 Second, the Ninth Circuit has explained that “purely clerical or secretarial tasks 18 should not be billed at a paralegal or lawyer’s rate, regardless of who performs them.” 19 Davis v. City & Cnty. of San Francisco, 976 F.2d 1536, 1543 (9th Cir. 1992) (internal 20 quotation marks and alterations omitted). Plaintiff’s counsel stipulates to erroneously 21 billing .2 hours of clerical work at an attorney’s rate, and such entries are unreasonable. 22 Dkt. 28 at 7; Dkt. 25-2. Accordingly, plaintiff’s proposed fee award will be reduced by 23 $41.56. 24 Third, courts have found .1 billing entries to be reasonable, so long as the entries 25 are not for perfunctory, vague, or redundant tasks. See Khan v. Comm’r of Soc. Sec., 26 No. 18-CV-02868-JSC, 2019 WL 5102601, at *5 (N.D. Cal. Oct. 11, 2019). Plaintiff’s 27 counsel billed .1 hours for tasks such as reviewing orders, decisions, and an answer, and 1 vague, or redundant. As such, plaintiff’s proposed fee award is not unreasonable on this 2 basis. 3 Accordingly, the court finds plaintiff’s proposed award of $11,237.54 minus $41.56 4 reasonable. 5 Plaintiff seeks an additional award for the 2.5 attorney hours associated with 6 preparing plaintiff’s reply brief. Under the EAJA, a plaintiff may seek fees for hours spent 7 litigating an EAJA fee award. See INS v. Jean, 496 U.S. 154, 162 (1990). Courts 8 routinely award fees for hours spent preparing reply briefs. See Valle, No. 16-CV-02358- 9 JSC, 2018 WL 1449414, at *3 (finding a billing entry for 9.75 hours reasonable for 10 preparing a reply brief); Potter v. Colvin, No. 14-cv-02562-JSC, 2015 WL 7429376, at *4 11 (N.D. Cal. Nov. 23, 2015) (awarding $569.04 in fees for three hours spent preparing a 12 reply brief); Smith v. Astrue, No. C 10–4814 PJH, 2012 WL 3114595, at *5 (N.D. Cal. July 13 31, 2012) (awarding fees for 2.6 hours spent preparing a reply brief). Accordingly, the 14 court finds the additional fees in the amount of $543.85 associated with plaintiff’s reply 15 brief reasonable. 16 CONCLUSION 17 The court GRANTS plaintiff's motion and awards $11,739.83 in attorneys’ fees. 18 Barring evidence of a valid assignment, the EAJA fee award shall be paid directly to 19 plaintiff, subject to any administrative offset due to outstanding federal debt. 20 IT IS SO ORDERED. 21 Dated: July 29, 2022 22 /s/ Phyllis J. Hamilton

PHYLLIS J. HAMILTON

23 United States District Judge

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