United States District Court, W.D. Washington, Seattle
HOLLY A. O’NEILL, Plaintiff,
ANDREW M. SAUL, Commissioner of Social Security,  Defendant.
ORDER RE: MOTION FOR EQUAL ACCESS TO JUSTICE ACT
ALICE THEILER UNITED STATES MAGISTRATE JUDGE.
filed a motion for attorney fees and expenses pursuant to the
Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412.
(Dkt. 24.) She requests $12, 459.25 in attorney fees. While
not disputing plaintiff’s entitlement to fees as a
general matter, the Commissioner argues the amount sought is
unreasonable. He requests a twenty-five percent reduction,
for a total of $9, 344.44 in fees. (Dkt. 28.) Plaintiff did
not reply to the Commissioner’s request for a
reduction. The Court, for the reasons set forth below,
concludes plaintiff’s motion should be GRANTED in part,
and plaintiff awarded a reduced amount of attorney fees.
EAJA, the Court awards fees and expenses to a prevailing
party in a suit against the government unless it concludes
the position of the government was “substantially
justified or that special circumstances make an award
unjust.” 28 U.S.C. § 2412(d)(1)(A). Having secured
a remand of this matter, plaintiff is the prevailing party.
Akopyan v. Barnhart, 296 F.3d 852, 854 (9th Cir.
2002). There are no special circumstances that would make an
award unjust and, as implicitly conceded by the Commissioner,
the government’s position was not substantially
justified. The only issue in dispute is the amount of
attorney fees properly awarded.
Court may award EAJA fees for attorney hours reasonably
expended by plaintiff’s counsel. 28 U.S.C. §
2412(d)(2)(A). “The most useful starting point for
determining the amount of a reasonable fee is the number of
hours reasonably expended on the litigation multiplied by a
reasonable hourly rate.” Hensley v. Eckerhart,
461 U.S. 424, 433 (1983). “[E]xcessive, redundant, or
otherwise unnecessary” hours should be excluded from
the fee award. Id. at 434. The Court must also
consider the results obtained when determining whether the
fees requested by a prevailing party for an unsuccessful
appeal are reasonable. Atkins v. Apfel, 154 F.3d
986, 989 (9th Cir. 1998) (citing Hensley, 461 U.S.
fee applicant bears the burden of establishing entitlement to
an award and documenting the appropriate hours
expended[.]” Hensley, 461 U.S. at 437.
However, “the party opposing the fee application has a
burden of rebuttal that requires submission of evidence to
the district court challenging the accuracy and
reasonableness of the hours charged or the facts asserted by
the prevailing party in its submitted affidavits.”
Gates v. Deukmejian, 987 F.2d 1392, 1397-98 (9th
Cir. 1992) (citations omitted).
Commissioner here argues the sixty-one hours expended by
plaintiff’s counsel in this case is excessive. The
Court agrees a reduction is warranted.
Commissioner observes, many district courts have “noted
that twenty to forty hours is the range most often requested
and granted in social security cases.” Costa v.
Comm’r of SSA, 690 F.3d 1132, 1136 (9th Cir.
2012). However, while a court may consider that fact, it
should not “apply a de facto policy” limiting
claimants to that range of hours in
“‘routine’ cases.” Id. A
determination of amount of time reasonably spent “will
always depend on case-specific factors including, among
others, the complexity of the legal issues, the procedural
history, the size of the record, and when counsel was
many, if not most Social Security disability matters, the
medical record in this case was substantial, comprising over
500 pages of the some 1100-page administrative record.
(See Dkt. 8.) Notwithstanding the significant size
of the medical record, the sixty-one hours spent working on
this case substantially exceeds the amount of time typically
devoted to a Social Security case. See, e.g., Stearns v.
Colvin, No. 14-5611, 2016 WL 730301 at *5 (W.D. Wash.
Feb. 24, 2016) (“[I]ncurring more than 35 hours
drafting the Opening Brief and 49.7 hours for the entire case
makes this fee petition one of the highest this Court has
ever been presented with for a Social Security case, if not
the highest it has been presented with.”)
does the amount of time spent appear reasonable in relation
to this particular case. Counsel spent thirty-seven hours
reviewing the transcript, conducting research, and drafting
the opening brief. (Dkt. 24-1.) The resulting opening brief
totaled only ten pages. While it contained some precise
arguments on narrow assignments of error, the brief otherwise
addressed issues only generally. Counsel, for example,
identified error in multiple medical opinions collectively
and devoted a single paragraph to error in the evaluation of
symptom testimony. (See Dkt. 10 at 7, 9-10.)
Moreover, after the Commissioner conceded harmful errors and
the need for remand, counsel for plaintiff billed over eleven
hours for preparing a four-page reply brief that addressed
solely the question of the proper remedy on remand.
(See Dkt. 18.)
counsel for plaintiff did not respond to the
Commissioner’s objection to the amount of fees
requested, it remains unclear why counsel required sixty-one
hours to work on this matter. The Court is left with
counsel’s assertion in the motion for fees that
“the time of Plaintiff’s attorney . . .
accurately reflects the time spent before this Court.”
(Dkt. 24 at 1.) The Court finds the time spent to exceed what
would reasonably be expected in this case.
Court, in sum, agrees counsel devoted an unreasonable number
of hours to this matter and that the fee award should be
reduced. The Court further finds a twenty percent
reduction of the fees originally sought by plaintiff in her
motion, which equates to a deduction of approximately twelve