Pettingill v. Kijakazi

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IN THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH, NORTHERN DIVISION
TERESA P.,
Plaintiff,
vs.
FRANK BISIGNANO,
Commissioner of Social Security,
Defendant.
Case No. 1:21-cv-00067-CMR
MEMORANDUM DECISION AND
ORDER GRANTING MOTION FOR
ATTORNEY FEES
Magistrate Judge Cecilia M. Romero
I. 	BACKGROUND
All parties in this case have consented to the undersigned conducting all proceedings (ECF
12). 28 U.S.C. § 636(c). In a Memorandum Decision and Order (ECF 33), the court determined
that the Administrative Law Judge (ALJ) “did not consider the criteria for fibromyalgia under Part
B of SSR 12-2p” at step two of the five-part sequential evaluation process (ECF 33 at 7). See 20
C.F.R. § 404.1520(a)(4). The court therefore reversed and remanded the decision of the
Commissioner of Social Security (Commissioner) denying Plaintiff Teresa P.’s (Plaintiff) claim
for Disabled Widow’s Insurance Benefits under Title II of the Social Security Act (Act).
Before the court is Plaintiff’s Motion for Attorney Fees (Motion) (ECF 35) pursuant to the
Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412. In the Motion, Plaintiff requests an award
of $8,466.84 in attorney fees, $17.58 in expenses, and $402 in costs (ECF 35 at 1).1 Plaintiff’s
attorney fee request is comprised of 20.9 attorney hours in 2021, 12.7 attorney hours in 2022, and
5.6 paralegal hours (ECF 35 at 3). The Commissioner opposes the Motion on the ground that
1 The Commissioner does not provide any arguments in opposition to the award of expenses or costs to Plaintiff.
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Commissioner’s position was substantially justified and alternatively requests a reduction of the
amount requested (ECF 37).2 The court has also considered Plaintiff’s Reply (ECF 38) addressing
the Commissioner’s arguments and requesting an additional award of $1,033.97 in attorney fees
for drafting the Reply. Having carefully considered the relevant filings, the court finds that oral
argument is not necessary and will decide this matter on the basis of written memoranda. See
DUCivR 7-1(g). For the reasons set forth below, the court GRANTS the Motion and awards
$8,257.92 in EAJA fees to Plaintiff.
II. 	DISCUSSION
A. Substantial Justification
Under the EAJA, “a court shall award to a prevailing [plaintiff] fees and other expenses ...
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). The Commissioner has the
“burden of demonstrating that the government's position was substantially justified.” Lopez v.
Berryhill, 690 F. App’x 613, 613 (10th Cir. 2017) (citing Hadden v. Bowen, 851 F.2d 1266, 1267
(10th Cir. 1988)). The Commissioner’s position was “substantially justified” if it was reasonable
in law and in fact and “can be ‘justified to a degree that could satisfy a reasonable person.’” Id.
(quoting Hackett v. Barnhart, 475 F.3d 1166, 1172 (10th Cir. 2007)). While an award of fees under
the EAJA is not automatic, see Hadden, 851 F.2d at 1269, the Tenth Circuit has held “that EAJA
‘fees generally should be awarded where the government’s underlying action was unreasonable
even if the government advanced a reasonable litigation position.’” Hackett, 475 F.3d at 1174
(quoting United States v. Marolf, 277 F.3d 1156, 1159 (9th Cir. 2002)).
2 The Commissioner does not argue that the hourly rates requested by Plaintiff are unreasonable.
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Here, the Commissioner contends that his litigation position was substantially justified for
primarily the same reason previously raised in opposing remand—that “the ALJ did not err
because Plaintiff’s counsel had affirmatively represented to the ALJ that Plaintiff was not seeking
an evaluation under SSR 12-2p because the record evidence was not sufficient to satisfy SSR 12-
2p” (ECF 37 at 6). The Commissioner contends that there was a reasonable basis in both law and
fact for this argument. The court disagrees. The Commissioner does not dispute the court’s
findings that “the ALJ did not evaluate the repeated manifestation of six or more fibromyalgia
signs and symptoms that would guide an analysis through Part B of SSA 12-2p” or that Plaintiff
pointed to evidence in the record that she “exhibits more than six of such manifestations” (ECF 33
at 5–6). Nor does the Commissioner dispute that the ALJ must make an independent consideration
of these issues even if not raised by the parties. See 20 C.F.R. §§ 404.900(b), .944, and .946(b)(1).
Accordingly, 	the 	court 	finds 	that 	the 	Commissioner’s 	litigation 	position 	was 	not
substantially justified. Plaintiff is therefore entitled to an award of attorney fees under the EAJA.
B. Reasonableness of Fee Amount
Once the court determines that the government's position was not substantially justified,
“then the court should determine what fee is merited for all aspects of the litigation that deal with
creating a benefit to the claimant.” Gallaway v. Astrue, 297 F. App’x 807, 809 (10th Cir. 2008).
The court in its discretion may reduce an award by excluding hours that were not reasonably
expended. See 28 U.S.C. § 2412(d)(1)(C). “[T]he fee applicant bears the burden of establishing
entitlement to an award and documenting the appropriate hours expended and hourly rates.”
Hensley v. Eckerhart, 461 U.S. 424, 437 (1983). The Tenth Circuit recognizes that attorneys
should exercise “billing judgment” regarding the number of hours actually billed. Ellis v. Univ. of
Kan. Med. Ctr., 163 F.3d 1186, 1202 (10th Cir. 1998). To show appropriate billing judgment, an
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attorney “should make a good-faith effort to exclude from a fee request hours that are excessive,
redundant, or otherwise unnecessary.” Id. (quoting Malloy v. Monahan, 73 F.3d 1012, 1018 (10th
Cir. 1996)). The court “has a corresponding obligation to exclude hours not reasonably expended
from the calculation.” Id. (quoting Malloy, 73 F.3d at 1018).
Here, the Commissioner asks the court to exclude several time entries in Plaintiff's
counsel’s billing records, arguing that these entries correspond to administrative and/or clerical
tasks that are not compensable under the EAJA (ECF 37 at 8–11). Plaintiff disputes that the time
entries are not compensable (ECF 38 at 3–7). “Although EAJA provides for an award of ‘fees and
expenses ... incurred by [a] party in any civil action ... brought by or against the United States[,]’
clerical work and overhead expenses are not compensable.” Villalobos v. Colvin, No. 1:15-cv-463-
CG, 2016 WL 10179289, at *2 (D.N.M. July 12, 2016) (quoting 28 U.S.C. § 2412(d)(1)(A))
(collecting cases).
Upon review of the time entries at issue here, the court agrees with the Commissioner that
several entries correspond to clerical tasks that are not compensable under the EAJA. Those non-
compensable clerical tasks include work related preparing files for attorney review, preparing the
retention letter and fee agreement, and processing the administrative record. See, e.g., Ayze v.
Kijakazi, No. 1:20-cv-338-JB-JHR, 2022 WL 17038637, at *5 (D.N.M. Nov. 17, 2022) (filing
documents and reviewing notices or other routine filings on the docket are clerical tasks that cannot
be compensated as attorney's fees under the EAJA); see also Hardister v. Kijakazi, No. 1:21-cv-
50-DBP, 2022 WL 2304284, at *3 (D. Utah, June 27, 2022) (reducing “the claimed paralegal time
by one half to account for time expended on clerical tasks such as file maintenance and
bookmarking PDF documents”).3 Accordingly, the court deducts 1.4 hours of paralegal time from
3 In arguing these fees are compensable, Plaintiff primarily points to decisions from district courts outside of the Tenth
Circuit, which the court does not find to be persuasive (ECF 38 at 3–4).
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Plaintiff's fee request for clerical work.4 The Commissioner asks the court to deduct attorney time
for clerical tasks such as reviewing filings (ECF 37 at 8-9) but does not identify the specific time
entries that are non-compensable. The court therefore declines to deduct attorney time for clerical
work.
Although the Commissioner seeks to exclude time spent preparing the civil cover sheet,
courts have approved time spent drafting the complaint, even when that time entry includes other
work deemed clerical. See, e.g., Apachito v. Berryhill, No. 1:17-cv-504-JCH-SMV, 2018 WL
5112908, at *2 (D.N.M. Oct. 19, 2018) (noting preparation of the civil cover sheet is clerical but
nonetheless allowing 1 hour for time entry “complaint, summons, transmittals, and civil cover
sheet”). The court will therefore allow attorney time spent drafting the complaint and civil cover
sheet in this case.
The Commissioner also argues that attorney fees requested by Plaintiff should be reduced
as duplicative because of six attorneys working on this case (ECF 37 at 10). Specifically, the
Commissioner points to duplicative review of the transcript with attorney Amy Ganetis (Ms.
Ganetis) spending 4.8 hours reviewing the transcript and then attorney Matthew McGarry (Mr.
McGarry) again reviewing the transcript in preparing the reply brief (ECF 35-3 at 2). Plaintiff
argues this time is compensable because Ms. Ganetis was a contract attorney, and it was Mr
McGarry’s responsibility to review her work, but does not cite to any authority to support this
argument (ECF 38 at 7). The court agrees that this time is duplicative and therefore deducts 4.8
hours of 2021 attorney time.
4 This deduction corresponds with the following time entries: 0.6 hours on 4/23/21 for “FDC contract and other rep
documents prepared for Client completion”; 0.3 hours on 4/26/21 for “FDC contract and other rep docs returned via
Right Sig., reviewed for completion”; 0.5 hours on 9/28/21 for “Combine, Strip PDF/A, OCR & Live Bookmark
Federal Court Transcript (535 pages)” (ECF 37 at 8–9). The court declines to deduct 0.7 hours on 11/15/22 for “Ready
EAJA motion, memorandum, time records, exhibits, certificate, send to Local Counsel” (ECF 35-2) because the court
does not interpret this entry as seeking time for clerical work as argued by the Commissioner (ECF 37 at 9).
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Lastly, the Commissioner seeks to exclude the time Plaintiff spent in connection with the
reply brief (ECF 37 at 11). The Commissioner contends that he lodged objections to Plaintiff's fee
request because Plaintiff included non-compensable time explaining the reasonableness of the
hours expended (ECF 37 at 11). This argument lacks merit as the reasonableness of the hours was
not the sole basis for the Commissioner’s objections because the Commissioner also argued that
her litigation position was substantially justified. Plaintiff’s reply brief addressed both arguments
raised by the Commissioner, and the court therefore rejects the Commissioner’s contention that
Plaintiff should not be awarded attorney fees for her reply brief. See Ramirez v. Kijakazi, No. CV
21-0458 KRS, 2023 WL 2167294, at *4 (D.N.M. Feb. 22, 2023) (awarding EAJA fees for the
reply brief in support of the fee request).
Based on the foregoing, the court will deduct 1.4 hours of paralegal time ($140.00) and 4.8
hours of attorney time ($1,102.89). With this deduction of $1,242.89 in fees and the addition of
$1,033.97 in fees for the Reply brief, the court awards a total of $8,257.92 in EAJA fees to Plaintiff.
III. 	CONCLUSION AND ORDER
IT IS HEREBY ORDERED that Plaintiff be awarded attorney fees pursuant to the EAJA
in the amount of $8,257.92 for attorney fees, $17.58 in expenses, and $402 in costs.
IT IS FURTHER ORDERED that if, after receiving the court’s EAJA fee order, the
Commissioner (1) determines upon effectuation of the court’s EAJA fee order that Plaintiff does
not owe a debt that is subject to offset under the Treasury Offset Program, and (2) agrees to waive
the requirements of the Anti-Assignment Act, the fees will be made payable to Plaintiff’s attorney.
However, if there is a debt owed under the Treasury Offset Program, the Commissioner cannot
agree to waive the requirements of the Anti-Assignment Act, and the remaining EAJA fees after
offset will be paid by a check made out to Plaintiff but delivered to Plaintiff’s attorney.
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DATED this 10 November 2025.
Magistrate Judge Cecilia M. Romero
United States District Court for the District of Utah
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