Cameron v. Massanari

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
SEP 17 2002
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk

BETTY L. CAMERON,

Plaintiff - Appellant,

v. No. 01-7145
(D.C. No. 99-CV-487-P)
JO ANNE B. BARNHART, * (E.D. Oklahoma)
Commissioner of Social Security
Administration,

Defendant - Appellee.

ORDER AND JUDGMENT **

Before MURPHY , ANDERSON , and HARTZ , Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

*
On November 9, 2001, Jo Anne B. Barnhart became the Commissioner of
Social Security. In accordance with Rule 43(c)(2) of the Federal Rules of
Appellate Procedure, Ms. Barnhart is substituted for Larry G. Massanari as the
appellee in this action
**
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.

Plaintiff seeks review of two district court orders awarding, but greatly

reducing, her application for attorney fees under the Equal Access to Justice Act

(EAJA), 28 U.S.C. § 2412. We have jurisdiction over the appeal, and we reverse.

Counsel represented plaintiff in her claim for social security disability

benefits. Plaintiff was unsuccessful before both the agency and the district court.

But on appeal this court reversed the district court’s order upholding the

Commissioner’s denial of benefits and remanded the matter for additional agency

proceedings. Cameron v. Halter , No. 00-7092, 2001 WL 370090 (10th Cir.

Apr. 12, 2001) (unpublished disposition). Counsel then filed a detailed EAJA fee

application seeking payment for 73.4 hours expended on the case in the district

court and in this court, for a total of $10,088.20. The Commissioner objected to

parts of the application and sought a reduction of 33.8 hours.

The district court entered an order concluding that plaintiff was

a prevailing party, that the government’s position was not substantially justified,

and that the amount requested was reasonable. Somewhat mysteriously, however,

the court then found plaintiff to be entitled to an EAJA fee award of only

$6,019.80. The court provided no explanation for this reduction.

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 Plaintiff moved for relief under Fed. R. Civ. P. 60 on the grounds that, in

light of the court’s conclusions, the amount of the award should have been the

requested $10,088.20, or alternatively, the court erred in failing to offer any

explanation for the amount it did award. The district court then entered a second

order stating that the $6,019.80 award was based on the court’s analysis of

plaintiff’s itemized statement and included “1.7 hours x $134.00 per hour in fees

earned in 1999; 38.9 hours x $138.00 per hour in fees earned in 2000; and 3.00

hours x $141.00 per hour in fees earned in 2001.” Aplt. Br., Ex. P. at 59. The

only accompanying explanation consisted of statements that plaintiff was not

entitled to fees for “work performed before the Social Security Administration

prior to the filing of the [c]omplaint,” nor was she “entitled to fees for redundant

and unnecessary work.” Id.

At the outset, we note what is not contested on appeal. The Commissioner

concedes that plaintiff is a prevailing party and does not contend that the

Commissioner’s position was substantially justified. There is also no

disagreement between the parties as to the applicable hourly rate. The

Commissioner does not argue that plaintiff was less than fully successful, nor

does she allege that counsel failed to keep adequate time records. Thus, the only

issues before us are whether the district court erred in reducing counsel’s time

and, if so, what remedy is appropriate.

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 We review the district court’s decision on the amount of the fee award for

abuse of discretion. Pierce v. Underwood , 487 U.S. 552, 571 (1988). That

review is, of course, deferential. See Webb v. Bd. of Educ. , 471 U.S. 234, 244

(1985) (appropriate deference must be paid to district court’s decision setting the

amount of attorney fee award). A court abuses its discretion if it “base[s] its

ruling on an erroneous view of the law or on a clearly erroneous assessment of the

evidence.” Cooter & Gell v. Hartmarx Corp. , 496 U.S. 384, 405 (1990).

“We will reverse the district court’s determination only if we find a complete

absence of a reasonable basis and are certain that the district court’s decision is

wrong.” Floyd v. Ortiz , ___ F.3d ___, No. 01-1295, 2002 WL 1980462, at 3

(10th Cir. Aug. 28, 2002) (quotation marks and citation omitted).

In this case we are hampered by the district court’s failure to provide more

than a cryptic explanation for its determination. See Hensley v. Eckerhart , 461

U.S. 424, 437 (1983) (although district court has discretion in determining

amount of fee award, “clear explanation of its reasons” remains important); Craig

v. Sec’y, Dep’t of Health & Human Servs. , 864 F.2d 324, 328 (4th Cir. 1989)

(district court must explain reasons for fee award), abrogated on other grounds by

Gisbrecht v. Barnhart , 122 S. Ct. 1817 (2002). This is not a case in which

identifying the hours reasonably expended would be a practical impossibility,

thereby justifying a general reduction. See, e.g., Case v. Unified Sch. Dist.

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No. 233 , 157 F.3d 1243, 1250 (10th Cir. 1998) (permitting general reduction of

hours when sufficient reason exists for using this method). On the other hand,

given the close correspondence between the reduction in hours sought by the

Commissioner and the court’s award, we can look to the Commissioner’s

argument in district court to try to determine the basis of the court’s decision.

For the year 1999, plaintiff requested payment for 2.6 hours. The

Commissioner objected to 0.9 of these as work done at the agency level and

therefore not compensable by the district court. But all the hours claimed were

after the Appeals Council had denied plaintiff’s petition for review, and thus after

final agency action. See Qualls v. Apfel , 206 F.3d 1368, 1371 (10th Cir. 2000)

(“The Appeals Council denied plaintiff’s petition for review, thereby making the

ALJ’s decision the final decision of the Commissioner . . . .”). The court reduced

plaintiff’s request by 0.9 hours with the statement that plaintiff was not entitled to

fees for work performed prior to the filing of the complaint, relying on White v.

United States , 740 F.2d 836, 841 (11th Cir. 1984); Guthrie v. Schweiker, 718 F.2d

104, 108 (4th Cir. 1983); and Webb v. Bd. of Educ. , 471 U.S. at 243. Aplt. Br.,

Ex. P. at 59. These cases do not, however, categorically exclude all work

performed prior to the date a complaint is filed.

The court in White held that under the EAJA, “the first of any recoverable

attorneys’ fees are the costs of preparing and filing the petition or complaint that

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commences the civil tax action.” White , 740 F.2d at 842. Of course, such

preparation predates the filing. As for Guthrie, although the court held that “fees

cannot be allowed for services rendered in the administrative proceedings,” it

went on to say that the district court can take into account “services in connection

with the judicial proceedings .” Guthrie , 718 F.2d at 108 (emphasis added).

The court did not say that it would exclude all services performed prior to filing

the complaint.

Webb as well does not preclude fees for all pre-complaint work. The

Supreme Court in Webb was called upon to determine whether, in awarding fees

under the Civil Rights Attorney’s Fees Awards Act of 1976, 42 U.S.C. § 1988, the

district court could properly exclude time spent pursuing optional administrative

proceedings. Webb , 471 U.S. at 235-36. The parties had agreed on how much of

the time claimed was spent in pursuit of administrative proceedings and how

much was spent in connection with the court action. Id. at 238 n.6. The Court

stated that the starting point for calculating the fee includes the time “reasonably

expended on the litigation .” Id. at 242 (internal quotation marks omitted). It

further noted that some “services performed before . . . the filing of a complaint

are performed ‘on the litigation,’” including “the drafting of the initial pleadings

and the work associated with the development of the theory of the case.” Id. at

243. If anything, Webb provides more support for plaintiff here than for the

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Commissioner. We conclude that the time for which plaintiff seeks compensation

in 1999 is within the definition of work performed in preparation for litigation

and is not work done in connection with proceedings before the agency.

Understanding the district court’s rationale for awarding payment for work

performed in 2000 is more difficult. The Commissioner’s objection sought to

reduce plaintiff’s time for drafting the opening brief in district court (from 25.2 to

17.2 hours); for drafting the reply brief in district court (from 13 to 0 hours); for

reviewing the magistrate judge’s order affirming the Commissioner (from 0.2 to

0.1 hours); for conducting a final review and determination of whether to appeal

that decision (from 2.3 to 0 hours); and for drafting the appellate brief (from 25.3

to 16 hours). Thus, the Commissioner offered her approval of 34.9 of the 67.6

hours plaintiff requested.

The district court authorized payment for 2000 for four hours more than the

Commissioner approved (28.7 hours less than plaintiff asked). Since none of this

time was for work done before the complaint was filed, we are left with the

court’s bare statement that plaintiff cannot be compensated for work that is

redundant and unnecessary. The court offered no explanation as to which hours

for which tasks counsel could not be compensated.

Rather than remand for a statement of the court’s reasons, however, we will

consider the Commissioner’s arguments and assess the fee ourselves. We do so

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for two reasons. First, litigation over attorney fees is singularly unproductive.

The Supreme Court has advised against the battle over such fees becoming a

“second major litigation.” Hensley, 461 U.S. at 437 Second, this is not a case

where the district court has any particular advantage over this court in assessing

fees. The hourly rate is undisputed. And because the attorney’s work in court

was entirely on paper, the district court cannot be said to have “observe[d] the

attorney’s work and [thus have] far better means of knowing what is just and

reasonable” than does this court. See Anderson v. Sec’y of Health & Human

Servs. , 80 F.3d 1500, 1504 (10th Cir. 1996) (internal quotation marks omitted).

Because counsel has provided sufficient detail for the time spent, this court

can determine the reasonableness of the fee request in much the same way we

analyze and evaluate requests for time spent on appeal when counsel requests

payment under the Criminal Justice Act (CJA), 18 U.S.C. § 3006A. Both the

EAJA and the CJA application requests incorporate the requirement that the time

be reasonably expended. In addition, plaintiff has attached to her brief all the

actual documents produced as the result of counsel’s labors. See Weakley v.

Bowen , 803 F.2d 575, 579-80 (10th Cir. 1986) (appellate court awards EAJA fees

for 11.25 hours in district court and 56 hours on appeal as reasonable amounts);

Mares v. Credit Bureau of Raton , 801 F.2d 1197, 1205 (10th Cir. 1986) (awarding

attorney fees for four hours of post-trial work, rather than remanding matter to

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district court); cf. Cooper v. United States R.R. Ret. Bd. , 24 F.3d 1414, 1417-18

(D.C. Cir. 1994) (evaluating reasonableness of fees sought in EAJA application

submitted to circuit court).

Turning to the specifics of this case, the Commissioner’s objection to 8 of

the 25.2 hours spent on plaintiff’s opening district court brief is without

foundation. Contrary to the Commissioner’s suggestion, counsel’s time spent

researching and analyzing the issues presented in the opening brief was not

merely duplication of the time counsel spent presenting petitioner’s challenges to

the Appeals Council. Plaintiff’s request for 25.2 hours is well within the bounds

of reasonable and necessary time spent on this activity. The Commissioner

further suggested that plaintiff’s reply brief was merely a repetition of her

opening brief and, therefore, none of the 13 hours requested should be allowed.

Again, we disagree. The reply brief addressed the Commissioner’s response

brief, emphasizing the administrative law judge’s errors. This time was neither

unnecessary nor redundant. Finally, we reject the requested reduction of 2.4

hours for time spent on review and analysis of the district court’s orders. We

expect counsel to spend time reviewing a district court’s order in determining

whether to appeal that order. Having reviewed plaintiff’s pleadings, this court

believes that the time expended on their preparation was reasonable.

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 Most puzzling is the district court’s award of only 3 of the 3.2 hours

requested for work performed in 2001. The Commissioner did not specifically

object to any of the time spent in 2001, nor did the district court explain the

reduction. Perhaps the court was adjusting for the mathematical error the

Commissioner made when she sought a total reduction of 33.8 hours but listed

particular reductions that totaled only 33.6 hours. In any event, we see no basis

for the reduction.

In summary, we have independently reviewed the fees sought and find them

well within the bounds of reasonableness. See also Ohlander v. Larson , 114 F.3d

1531, 1538 (10th Cir. 1997) (holding that remand not necessary although district

court failed to apply correct legal standard, because no dispute as to underlying

facts and interests of judicial economy and efficiency support deciding matter).

Accordingly, the district court’s fee orders are REVERSED, and the matter

is REMANDED to the district court with directions to award payment under the

EAJA as requested by plaintiff.

Entered for the Court

Harris L Hartz
Circuit Judge

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