Routine Is in the Eye of the Beholder–The Third Reduction Was Not Viewed Kindly By Ninth Circuit; “Judicial Intuit Gestalt” Reigned Supreme.
Costa v. Commissioner of Social Security Administration, Case No. 11-35245 (9th Cir. Aug. 24, 2012) (published) (per curiam) reinforces a theme we see at both the federal and state court levels on fees–lower courts and litigants should be reticent to use formulaic approaches to the amount of fee recovery, especially given that most of these types of recovery are fairly case specific in nature (defying generalities).
There, a magistrate judge reversed an administrative law judge’s decision finding that a social security disability claimant was not disabled. Claimant then sought reasonable attorney’s fees under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d), requesting fees in the amount of $10,544.72. However, the magistrate judge reduced the number of hours by one-third, to $7,191.35, placing special emphasis on a de facto cap that some local judicial orders had set in “routine” social security disability matters–namely, 20 to 40 hours. (In fairness to the magistrate judge, he did include some specific line item reductions in requested fees, but the problem for the Ninth Circuit was that they were vaguely consonant with coming to the de facto hourly conclusion — I guess we could argue this is “judicial intuit gestalt,” maybe a new phrase we just coined. Otherwise known as “I know it when I see it.”)
The Ninth Circuit reversed and actually ordered compensation in the requested amount of $10,544.72, likely because the amounts involved did require a new remand determination.
The de facto policy, in our blogging view, is what drove the result in this decision. Although surveying hourly rates in different cases is probative, the Ninth Circuit seemed skeptical that the the amount of time spent in other cases could really be determinative in different cases where case-specific factors might drive up the time spent in the case. (Actually, this seems to be a very pragmatic determination.) Also, relying on its earlier decision in Moreno v. City of Sacramento, 534 F.3d 1106, 1113 (9th Cir. 2008) [discussed in our August 2, 2008 post], the federal appellate court determined that the magistrate judge’s fee reductions were not specific enough to really justify a haircut of a third. Requested attorney’s fees granted, in the case of the federal appeals court not liking de facto fee caps.