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Jean P. R. E. v. Berryhill

United States District Court, D. Minnesota

May 16, 2019

Jean P. R. E., Plaintiff,
Nancy A. Berryhill, Acting Commissioner of Social Security Defendant.

          Karl E. Osterhout, Osterhout Berger Disability Law, LLC, and Edward C. Olson, (for Plaintiff).

          Tracey Wirmani, Special Assistant United States Attorney, and Bahram Samie, Assistant United States Attorney (for Defendant).


          Tony N. Leung United States Magistrate Judge


         On September 17, 2018, the Court granted Plaintiff Jean P. R. E.'s motion for summary judgment, denied Defendant Nancy A. Berryhill's (“the Commissioner”) motion for summary judgment, and remanded this matter to the Social Security Administration for further proceedings. See generally Emery v. Berryhill, No. 17-cv-1988 (TNL), 2018 WL 4407441 (D. Minn. Sept. 17, 2018). This matter now comes before the Court on Plaintiff's petition for an award of attorney fees pursuant to the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412. (Pet. for Att'y Fees, ECF No. 27).

         II. ANALYSIS

         Under the 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, 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)). The Commissioner does not assert that either of these exceptions applies. Rather, the Commissioner objects to the amount of fees requested, asserting that some of the time spent was unreasonable.

         Plaintiff seeks compensation for 45.9 hours of work performed by his attorneys at the rate of $196.50 per hour for a total of $9, 019.35.[1] (Pet. for Att'y Fees ¶¶ 6, 8). The Commissioner raises several challenges to the number of hours claimed by Plaintiff. In brief, the Commissioner maintains that 35 hours of attorney time is reasonable for this matter and any additional time was not reasonably expended. Accordingly, it is the Commissioner's position that a fee award of $6, 877.50 is appropriate in this case. (Def.'s Opp'n. at 7, ECF No. 32).

         A. Pre-Complaint Work

         The Commissioner first challenges reimbursement for “2 hours of work performed prior to the filing of Complaint.” (Def.'s Opp'n at 3). The Commissioner contends that those two hours constitute “administrative level” work, and thus are not compensable under the EAJA. (Def's Opp'n at 3 (citing Melkonyan v. Sullivan, 501 U.S. 89, 94, 97 (1991); Cornella v. Schweiker, 728 F.2d 978, 988 (8th Cir. 1984)).

         The work discussed in Melkonyan and Cornella is distinguishable from the pre-complaint work in this case. In those cases, the work discussed was performed in administrative proceedings, not in preparation for the filing of a civil action. See Melkonyan, 501 U.S. at 94, 97; Cornella, 728 F.2d at 988-89; see also Kelly v. Bowen, 862 F.2d 1333, 1336 (8th Cir. 1988) (“[W]e reaffirm Cornella v. Schweiker and hold that, under the EAJA . . ., a Social Security claimant cannot recover attorney's fees for work performed in administrative proceedings after remand.” (emphasis added)).

         Federal courts in California have squarely and repeatedly rejected the Commissioner's interpretation of Melkonyan. See, e.g., Adams v. Berryhill, No. CV 17-4030 AFM, 2018 WL 6333694, at *3 (C.D. Cal. Oct. 26, 2018) (“Nothing in Melkonyan addresses the issue of whether work performed in preparation of filing a civil complaint is compensable under the EAJA.”); Kirk v. Berryhill, 244 F.Supp.3d 1077, 1083 (E.D. Cal. 2017) (“Furthermore, contrary to defendant's contention, Melkonyan does not stand for the proposition that compensation is not permitted for work performed before a suit has been brought in a court.” (quotation omitted)); Kuharski v. Colvin, No. 2:12-CV-1055 AC, 2015 WL 1530507, at *5 (E.D. Cal. Apr. 2, 2015) (“There is simply no holding, statement, or note in Melkonyan that could possibly be interpreted as indicating that work done after completion of the administrative process, but that pre-dates the complaint, is non-compensable under EAJA.”); Haislip v. Colvin, No. 1:12-cv-00964 (GSA), 2014 WL 1846052, at *4 (E.D. Cal. May 8, 2014) (“Neither [Melkonyan nor Mendenhall v. NTSB, 213 F.3d 464 (9th Cir. 2000), ] holds that work performed in preparation for a civil action after the administrative proceedings have concluded is noncompensable under EAJA.”); Thompson v. Astrue, No. 2:11-CV-0429 EFB, 2012 WL 5949218, at *2 (E.D. Cal. Nov. 28, 2012) (Melkonyan did not support “the proposition that plaintiff is precluded from seeking any fees under EAJA for work completed prior to the commencement of this civil action”); see also, e.g., San v. Comm'r of Soc. Sec., No. 1:11-CV-1211-BAM, 2016 WL 500576, at *4 (E.D. Cal. Feb. 9, 2016); Samsaguan v. Colvin, No. ED CV 12-2219-DFM, 2014 WL 4988205, at *4 (C.D. Cal. Oct. 6, 2014).

         The pre-complaint work in this case was not for work performed at the administrative level, which had concluded, but was in preparation for filing this action in federal court. Notably, Plaintiff's attorneys did not represent him in the underlying administrative proceedings. The two hours claimed was spent reviewing those underlying proceedings and conferring with Plaintiff regarding bringing this action in federal court. “An attorney is expected to be familiar with [the] case prior to filing a complaint in federal court.” Jones v. Colvin, No. 2:14-CV-2088-PKH-MEF, 2015 WL 5330885, at *3 (W.D. Ark. Aug. 17, 2015), adopting report and recommendation, 2015 WL 5305230 (W.D. Ark. Sept. 10, 2015); see Caylor v. Astrue, 769 F.Supp.2d 1350, 1353 (M.D. Fla. 2011) (“Plaintiff's counsel was thus obligated to familiarize himself with the case before filing the federal court complaint.”); see also Fed. R. Civ. P. 11(b). Courts regularly award compensation under the EAJA for time spent by counsel to familiarize themselves with the underlying administrative proceedings before filing in federal court. See, e.g., Evans v. Berryhill, 298 F.Supp.3d 1210, 1213 (D. Minn. 2018); Dimond v. Berryhill, No. 16-cv-322 (BRT), 2017 WL 4898509, at *2 (D. Minn. Sept. 22, 2017); Jones, 2015 WL 5330885, at *3; Masterson v. Colvin, Civil No. 12-2091, 2013 WL 4961648, at *3 (W.D. Ark. Sept. 13, 2013); Caylor, 769 F.Supp.2d at 1353 (citing cases); see also, e.g., Cameron v. Barnhart, 47 Fed.Appx. 547, 550-51 (10th Cir. 2002); Novotny v. Berryhill, No. 8:16CV529, 2018 WL 2234901, at *1-2 (D. Neb. May 16, 2018). Plaintiff's “[c]ounsel was entirely justified in spending a small amount of time analyzing the administrative record before filing the complaint and initiating this action.” Evans, 298 F.Supp.3d at 1213. The Court finds that the two hours of work performed prior to the filing of the Complaint is reasonable and compensable under the EAJA.

         B. Preparation of ...

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