United States District Court, D. Montana, Missoula Division
JEREMIAH C. LYNCH UNITED STATES MAGISTRATE JUDGE
31, 2018, the Court entered a stipulated order remanding
Plaintiff's application for supplemental security income
benefits to the Commissioner for further proceedings pursuant
to sentence four of 42 U.S.C. § 405(g). This matter
comes before the Court now on Plaintiff's application for
an award of attorney fees in the amount of $6, 690.86
pursuant to the Equal Access to Justice Act, 28 U.S.C. §
2412(d) (EAJA). Plaintiff's counsel requests payment for
34 hours of work at the 2016 EAJA hourly rate of rate of
the EAJA, a party who prevails in a civil action against the
United States is entitled to an award of attorney's fees
“unless the court finds that the position of the United
States was substantially justified” or special
circumstances make an award unjust. 28 U.S.C. §
2412(d)(1)(A). The Commissioner does not dispute that
Plaintiff is a prevailing party for purposes of an EAJA fee
award, and does not argue that the agency's position was
substantially justified. Nor has the Commissioner pointed to
any other circumstances that would make an award of fees in
this case unjust. Rather, the Commissioner argues the amount
of fees Plaintiff has requested is excessive.
the EAJA, the district court may award fees for the number of
attorney hours “reasonably expended” by counsel
in the case. 28 U.S.C. § 2412(d)(2)(A). The court has
discretion to determine whether the fees requested are
reasonable, and has “wide latitude in determining the
number of hours that were reasonably expended by the
prevailing lawyers.” Moreno v. City of
Sacramento, 534 F.3d 1106, 1111 (9th Cir.
2008) (citing Blum v. Stenson, 465 U.S. 886, 901
(1984)). See also Hensley v. Eckerhart, 461 U.S.
424, 436-37 (1983). The party seeking fees bears the burden
of showing that the number of hours expended was reasonable.
See Hensley, 461 U.S. at 437.
general rule, “the district court must give reasons for
reducing fees.” Costa v. Commissioner of Social
Sec. Admin, 690 F.3d 1132, 1135 (9th Cir.
2012) (citing Moreno, 534 F.3d at 1111). The court
may, however, “impose a reduction of up to 10 percent -
a ‘haircut' - based purely on the exercise of its
discretion and without more specific explanation.”
Costa, 690 F.3d at 1136 (citing Moreno, 534
F.3d at 1112).
Commissioner objects to the amount of Plaintiff's fee
request on the ground that counsel improperly billed for
clerical tasks, engaged in block billing, and billed amounts
unreasonable amounts for certain tasks. As a result, the
Commissioner asks the Court to reduce the requested fee award
by some unspecified amount.
response to the Commissioner's objections, Plaintiff has
submitted the affidavit of James P. O'Brien. (Doc. 20-1).
Based on his review of the record, O'Brien agrees that a
minimal reduction is appropriate because counsel billed for
some clerical tasks and billed unreasonable amounts of time
for a few other tasks. O'Brien recommends a total
reduction of no less than 1.5 hours and no more than 1.7
hours. (Doc. 20-1, ¶ 15).
well settled in the Ninth Circuit that clerical work is not
properly reimbursable as attorney's fees. See e.g.
Missouri v. Jenkins, 491 U.S. 274, 288 n. 11989);
Aranda v. Astrue, 2011 WL 2413996, *6 (D. Or. June
8, 2011). Nevertheless, Plaintiff's counsel has
submitting billing entries for approximately six hours spent
on clerical tasks such as preparing cover sheets and
summonses, filing documents, preparing and filing a notice of
change of address, and preparing unspecified correspondence.
(Doc. 18, at 5-8 (billing entries dated 12/04/17; 12/14/17;
12/18/17; 2/26/18; 4/19/18)). Because some of these entries
were block billed and the nature of the correspondence is not
entirely clear, it is not possible to determine exactly how
much time was actually spent on clerical tasks. The Court
agrees that a minimal reduction of fees is thus appropriate
Next, the Commissioner objects to counsel's use of block
billing “Block billing refers to the practice of
recording various tasks performed on a case, but entering
only a total time spent collectively on those tasks, rather
than entering the time spent on each discrete task.”
Santana v. Berryhill, 2017 WL 4211044 *4 (D. Haw.
Aug. 31, 2017) (quoting Painsolvers, Inc. v. Statefarm
Mut. Auto. Ins. Co., 2012 WL 25292998 *13 (D. Haw. June
28, 2012)). The Commissioner is correct that Plaintiff's
counsel billed some of his time in block format, with some
entries describing two or more tasks. For example, one entry
is for 5.75 hours spent reviewing the file, reviewing the
transcript, reviewing the medical records, and preparing a
medical record summary. (Doc. 18, at 6 (billing entry dated
03/15/18)). Nevertheless, with the exception of the
difficulty identifying the exact amount of time spent on
clerical tasks, counsel's billing entries are
sufficiently detailed to permit the Court to evaluate the
reasonableness of the hours expended on the case. Thus, a
percentage reduction for block billing is not warranted.
the Commissioner objects to several billing entries on the
ground that the number of hours spent on particular tasks is
excessive under the circumstances. The Court agrees that some
of counsel's itemized time is excessive. For example,
counsel billed a quarter of an hour to review the order
granting in forma pauperis (12/5/17); billed a quarter of an
hour to review a notice of appearance (2/7/18); billed a
quarter of an hour to review the briefing schedule and notice
of assignment (2/21/18); and billed .3 hours to review
consents and a notice of consent (3/13/18).
reasons set forth above, the Court concludes that
Plaintiff's fee request ($6, 690.86) should be reduced by
ten percent ($669.09), which is equivalent to excluding
between three and four hours of attorney time from the 34
hours submitted. Accordingly, IT IS ORDERED that
Plaintiff's motion for attorney fees be GRANTED in the
amount of $6, 021.77. If, after receiving the Court's
EAJA fee 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
requirement of Anti-Assignment Act, the fees should be made
payable to Plaintiff's attorneys. However, if there is a
debt owed under the Treasury Offset Program, the ...