United States District Court, D. Minnesota
Jean P. R. E., Plaintiff,
Nancy A. Berryhill, Acting Commissioner of Social Security Defendant.
E. Osterhout, Osterhout Berger Disability Law, LLC, and
Edward C. Olson, (for Plaintiff).
Wirmani, Special Assistant United States Attorney, and Bahram
Samie, Assistant United States Attorney (for Defendant).
N. Leung United States Magistrate Judge
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).
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.
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. (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).
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.
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.”
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).
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.
Preparation of ...