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Semler v. Berryhill

United States District Court, D. Minnesota

March 27, 2018

John E. Semler, Plaintiff,
v.
Nancy A. Berryhill, Acting Commissioner of Social Security, Defendant.

          J. Asha Sharma and Paul McGrath, Disability Partners PLLC, (for Plaintiff); and

          Bahram Samie, Assistant United States Attorney, (for Defendant).

          ORDER

          Tony N. Leung United States Magistrate Judge District of Minnesota

         Plaintiff John E. Semler, through his attorneys, brought suit contesting Defendant Commissioner of Social Security's denial of his application for adult child's insurance benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401-33. (ECF No. 1). Plaintiff's motion for summary judgment was granted, Defendant's motion for summary judgment was denied, and the Commissioner's decision was vacated as to steps two through five and this case was remanded for further proceedings. (ECF No. 25).

         Plaintiff then filed an Application for Award of Attorney's Fees Pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412. (ECF No. 28). Plaintiff requests an award of attorney's fees totaling $18, 885.25 for 97.3 hours of work. (ECF Nos. 28-31, 33). In support of the motion, Plaintiff's counsel has provided an affidavit attesting to the legal services performed alongside an itemized list of the time worked. (ECF No. 33). Defendant submitted an opposition brief, arguing that Plaintiff cannot be compensated for clerical tasks and also seeking a wholesale reduction of the fees rewarded. (ECF No. 34).

         I. ANALYSIS

         A. Legal Standard

         Under the Equal Access to Justice Act (“EAJA”), “a party who prevails in a civil action against the United States-including a lawsuit seeking judicial review of administrative action-shall be awarded fees and expenses ‘unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust.'” Rapp v. Colvin, Case No. 12-cv-2473 (PJS/TNL), 2014 WL 5461889, at *1 (D. Minn. Oct. 27, 2014) (quoting 28 U.S.C. § 2412(d)(1)(A)). Fees must be awarded under the EAJA to a prevailing social security claimant unless the Commissioner's “position in denying benefits was substantially justified.” Welter v. Sullivan, 941 F.2d 674, 676 (8th Cir. 1991). The Commissioner “bears the burden of proving the denial of benefits was substantially justified.” Id.

         The Commissioner does not dispute that Plaintiff was the prevailing party. (ECF No. 34, at 2). Nor does the Commissioner raise any argument that her position in denying benefits was substantially justified. Rather, the Commissioner challenges the requested fees on two grounds. First, the Commissioner argues that counsel billed for some clerical activities which are non-compensable under the EAJA. (ECF No. 34, at 2-4). Second, the Commissioner argues that the amount of time spent by counsel was unreasonable. (ECF No. 34, at 4-6). In response, Plaintiff's counsel concedes some hours billed are non- compensable, (ECF No. 35, at 1-3), but argues that the time spent overall was reasonable, (ECF No. 35, at 3-11).

         B. Administrative and Clerical Tasks

         “It is well settled that costs associated with clerical tasks are typically considered overhead expenses reflected in an attorney's hourly billing rate and are not properly reimbursable.” Brandt v. Astrue, 2009 WL 1727472, at *4 (D. Or. June 16, 2009) (citing Missouri v. Jenkins, 491 U.S. 274, 288 n. 10 (1989)); Knudsen v. Barnhart, 360 F.Supp.2d 963, 977 (N.D. Iowa 2004). “Purely clerical activities, regardless of who performs them, are considered overhead and are not compensable as EAJA attorney fees.” Gough v. Apfel, 133 F.Supp.2d 878, 881 (W.D. Va. 2001) (citing Jenkins, 491 U.S. at 288 n. 10); Granville House, Inc. v. Dept. of Health, Educ. and Welfare, 813 F.2d 881, 884 (8th Cir, 1987) (holding that work which could have been completed by support staff is not compensable under the EAJA); Magwood v. Astrue, 594 F.Supp.2d 557, 562 (E.D. Pa. 2009) (concluding that purely clerical activities, regardless of who performs them, are considered overhead and not compensable as attorney fees); see Brandt, 2009 WL 1727472, at *3, *5 (declining to award fees for clerical tasks performed by an attorney notwithstanding the fact that the attorney “d[id] not utilize any paralegal or assistants for any task”). Clerical activities include tasks such as filing documents, preparing and serving summons, preparing and serving a civil cover sheet, mailing items to the court or other parties, downloading and emailing documents, and scanning documents as well as preparing an itemized invoice for legal services. See, e.g., Neil v. Comm'r of Soc. Sec., 495 Fed. App'x 845, 847 (9th Cir. 2012); Spiller v. Comm'r of Soc. Sec., 940 F.Supp.2d 647, 651 (S.D. Ohio 2013); Brandt, 2009 WL 1727472, at *3-*5.

         Here, the Commissioner challenges 4.1 hours billed by Plaintiff's counsel, asserting the time entries constitute non-compensable clerical tasks. First, the Commissioner challenges 3.5 hours from July 11, 2016, July 15, 2016, July 18, 2016, and July 19, 2016 for preparing forms to be filed with the court;[1] 0.3 hours on December 7, 2016 for mailing Plaintiff's motion for summary judgment; and 0.3 hours on January 27, 2017 for scanning and filing Plaintiff's reply brief. (ECF No. 34, at 3-4). The Commissioner offers no analysis as to the hours challenged, merely asserting that “these purely clerical tasks are non-compensable under the EAJA and should not have been included in Plaintiff's fee application . . .” (ECF No. 34, at 4).

         Plaintiff asserts the 1.2 hours spent on July 11, 2016 gathering and drafting forms for filing this case in district court and researching filing procedures and rules was not clerical in nature because it required the knowledge of an attorney to ensure proper completion and that it is not excessive or unreasonable because Plaintiff's attorneys have very little experience handling cases in federal district court. (ECF No. 35, at 2). Here, while the Court is sympathetic with Plaintiff's counsels' inexperience litigating in federal court and commends time spent ensuring Plaintiff's complaint was properly filed, a requisite for admission to practice in this District is an attorney's familiarity with the Federal Rules of Civil Procedure and the court's local rules. D. Minn. LR 83.5(c). As noted above, time spent filing documents, preparing and serving summons, and preparing and serving a civil cover sheet are considered clerical activities. As such, the Court concludes these 1.2 hours spent on July 11, 2016 are non-compensable under the EAJA. Moreover, Plaintiff agrees to eliminate the 0.1 hours spent on July 11, 2016 concerning the unsuccessful telephone call. (ECF No. 35, at 3). Accordingly, the 0.1 hours spent on the unsuccessful telephone call is eliminated from Plaintiff's fee request. With respect to the 0.2 hours spent by Plaintiff's two attorneys to consult with one another regarding the administrative hearing, including whether the Administrative Law Judge (“ALJ”) addressed Plaintiff's hearing loss, what the independent medical expert testified to, and issues that needed clarification for the appeal, the Court concludes this is compensable EAJA work. As such, the total hours for July 11, 2016 are reduced from 1.5 to 0.2 hours.

         As with the unsuccessful July 11 telephone call, Plaintiff agrees to eliminate the 0.1 hours spent on July 15, 2016 on another unsuccessful telephone call. (ECF No. 35, at 3). Accordingly, the 0.1 hours spent ...


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