F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
March 27, 2007
FO R TH E TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
NORM A J. ALEXAN DER,
Plaintiff-Appellant,
v. No. 05-5015
(D.C. No. 00-CV-918-M )
M ICH AEL J. ASTRU E, * (N.D. Okla.)
Commissioner of Social Security
Administration,
Defendant-Appellee.
OR D ER AND JUDGM ENT **
Before O’BRIEN, HOL LOW A Y, and BALDOCK , Circuit Judges.
Plaintiff-appellant Norma J. Alexander brought an action against the Social
Security Administration and, after prevailing in this court on direct appeal, was
awarded attorney’s fees in the amount of $11,214.60 for the underlying action
*
Pursuant to Fed. R. App. P. 43(c)(2), M ichael J. Astrue is substituted for
Jo Anne B. Barnhart as appellee in this action.
**
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
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
under 28 U.S.C. § 2412(d)(1)(A), a section of the Equal Access to Justice Act
(EAJA ). M s. Alexander then filed a fee application to recoup the fees and costs
associated with the initial EAJA fee application. The magistrate judge, who had
presided over the underlying litigation with the consent of the parties, awarded
only a portion of the attorney’s fees, reducing the amount of fees requested from
$3,054.50 to $1,192.00. M s. Alexander appeals that part of the magistrate judge’s
order reducing the amount of fees requested. Because the magistrate judge did
not abuse his discretion, we affirm.
In general, private parties who prevail in litigation against the United States
are to be aw arded reasonable fees and other expenses by the district court “unless
the court finds that the position of the United States was substantially justified or
that special circumstances make an award unjust.” 28 U.S.C. § 2412(d)(1)(A).
There is no question in this case about the rate charged by M s. Alexander’s
counsel, the lack of justification for the government’s position, or the absence of
special circumstances; the dispute is solely about the size of the award.
“A decision regarding whether attorney fees and costs should be awarded
under the EA JA will be reversed only for abuse of discretion.” Van Dinh v. Reno,
197 F.3d 427, 430 (10th Cir. 1999). The district court is required to provide a
clear and concise explanation of a fee award in order to facilitate review on
appeal. Case v. Unified Sch. Dist., 157 F.3d 1243, 1249 (10th Cir. 1998). W e
will reverse “only if we find a complete absence of a reasonable basis and are
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certain that the district court’s decision was wrong.” Floyd v. Ortiz, 300 F.3d
1223, 1227 (10th Cir. 2002).
W e customarily defer to the district court’s judgment because an
appellate court is not well suited to assess the course of litigation and
the quality of counsel. The district court saw the attorneys’ work
first hand, and has far better means of knowing what is just and
reasonable than an appellate court.
Case, 157 F.3d at 1249 (quotations and citations omitted). The Supreme Court
has emphasized that “it is appropriate to allow the district court discretion to
determine the amount of a fee award, given its ‘superior understanding of the
litigation and the desirability of avoiding frequent appellate review of what
essentially are factual matters.’” Comm’r, INS v. Jean, 496 U.S. 154, 161 (1990)
(quoting Hensley v. Eckerhart, 461 U.S. 424, 437 (1983)).
W ork expended in the preparation and defense of a fee application is
compensable under EAJA. See id., 496 U.S. at 162. Specifically regarding a fee
award for w ork on a prior fee proceeding, we have said that, “[o]nly in
extraordinary circumstances [will we] disturb a district judge’s exercise of his
discretion in awarding or denying fees for establishing fees.” M ares v. Credit
Bureau, 801 F.2d 1197, 1206 (10th Cir. 1986). This court, however, has
recognized a difference “between time necessary to prepare and submit an
application for fees, and hours spent disputing a fee aw ard. The latter are
especially suspect, and may be disallowed in their entirety.” Id.
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In this case, M s. Alexander requested fees for 20.5 hours of work totaling
$3,054.50, or, as the magistrate judge noted, an amount equal to “approximately
27% of the hours [] spent on the original case.” O rder at 2 (Aplt. Opening Br.
Attach. P). The court found that the total of ten hours spent by M s. Alexander’s
counsel in studying the cases cited by defendant and an additional ten hours
“‘finishing’” his brief was unreasonable. Id. at 3. As support for that conclusion,
the magistrate judge noted
at this point in the litigation Plaintiff’s counsel was fully immersed
in this case and already familiar with Defendant’s argument in
disputing a fee award. Defendant raised no new factual or legal
issues and counsel had only to present justification for having spent
the number of hours he claimed on specific tasks in his fee request.
Id. at 4. The court thus reduced the fee award to an amount equal to one workday
of eight hours, or $1,192.00. W e do not view this conclusion to be an abuse of
discretion.
M s. Alexander’s arguments to the contrary are not persuasive.
M s. Alexander takes issue with the magistrate judge’s citation to a Sixth Circuit
case, Coulter v. Tennessee, 805 F.2d 146 (6th Cir. 1986), which the judge referred
to as “instructive.” Coulter held that hours spent in litigating an attorney fee case
“should not exceed 3% of the hours in the main case when the issue is submitted
on the papers w ithout a trial and should not exceed 5% of the hours in the main
case when a trial is necessary.” Id. at 151. The magistrate judge, however, did
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not strictly apply Coulter. Instead, he awarded M s. Alexander fees for eight
hours of work, an amount approximately equal to ten percent of the hours spent in
litigating this case in the district court and on appeal. W hile this court has not
established bright-line rules like those articulated in Coulter, the magistrate
judge’s use of the case as guidance was not an abuse of discretion.
M s. Alexander next argues that defendant, in response to the initial EAJA
petition, cited four cases “not often seen in Social Security litigation . . . that
were not available on the W estlaw Social Security service, and with which
counsel was not familiar,” Aplt. Opening Br. at 31, thus requiring time for
thorough examination and efforts to distinguish. W e note that all of the cases
referred to were older cases from federal circuit courts, and presumably available
on the general Westlaw database (or even in books) at the time M s. Alexander’s
response was prepared. Further, two of those cases discussed fairly routine
concepts in the world of EAJA fee litigation. See ACLU v. Barnes, 168 F.3d 423
(11th Cir. 1999) (detailing adjustment to award due to attorney’s lack of billing
judgment, non-litigation related work, unnecessary expenses etc.); Cooper v.
United States R.R. Ret. Bd., 24 F.3d 1414 (D.C. Cir. 1994) (examining
justification of government’s position and reducing excessive fee). The other tw o
cases involved routine issues along with issues not particularly on point and
easily distinguishable. See Grendel’s D en, Inc. v. Larkin, 749 F.2d 945 (1st Cir.
1984) (reducing excessive fees and examining liability of liquor commission for
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fees); Okla. Aerotronics, Inc. v. United States, 943 F.2d 1344 (D.C. Cir. 1991)
(dealing with interest on fees and compensation for delay). Therefore,
defendant’s opposition to M s. Alexander’s initial fee request was not
unreasonable and should not have unduly increased the amount of time she
needed to respond beyond the eight hours awarded by the magistrate judge.
As for the magistrate judge’s reference to the amount of fees awarded for
the underlying litigation as “on the high end,” and his erroneous belief that, in
that prior fee award the court had expressed its reluctance to order the full amount
requested, we do not find this a basis for reversal. The reasons cited by the
magistrate judge, irrespective of these two references, amply support the second
fee award.
Finally, contrary to M s. Alexander’s contention that the magistrate judge
failed to provide enough reasoning to allow us an adequate basis for review, the
judge clearly explained his reasons for discounting the amount of the fee request,
and we have had no trouble following his logic. See Case, 157 F.3d at 1249.
The judgment of the district court is AFFIRMED.
Entered for the Court
Terrence L. O’Brien
Circuit Judge
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