United States District Court, D. Minnesota
John E. Semler, Plaintiff,
Nancy A. Berryhill, Acting Commissioner of Social Security, Defendant.
Asha Sharma and Paul McGrath, Disability Partners PLLC, (for
Samie, Assistant United States Attorney, (for Defendant).
N. Leung United States Magistrate Judge District of Minnesota
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).
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).
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.
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).
Administrative and Clerical Tasks
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.
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; 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).
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.
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 ...