Filed: Sep. 20, 2005
Latest Update: Feb. 21, 2020
Summary: United States Court of Appeals Fifth Circuit F I L E D UNITED STATES COURT OF APPEALS For the Fifth Circuit September 19, 2005 Charles R. Fulbruge III Clerk No. 04-10600 BARBARA SANDERS, Plaintiff-Appellant, VERSUS JO ANNE B. BARNHART, Commissioner of Social Security, Defendant-Appellee. Appeal from the United States District Court For the Northern District of Texas, Fort Worth Division ( 4:03-CV-132-A ) Before GARWOOD, SMITH, and DeMOSS, Circuit Judges. PER CURIAM:* Appellant Barbara Sanders fi
Summary: United States Court of Appeals Fifth Circuit F I L E D UNITED STATES COURT OF APPEALS For the Fifth Circuit September 19, 2005 Charles R. Fulbruge III Clerk No. 04-10600 BARBARA SANDERS, Plaintiff-Appellant, VERSUS JO ANNE B. BARNHART, Commissioner of Social Security, Defendant-Appellee. Appeal from the United States District Court For the Northern District of Texas, Fort Worth Division ( 4:03-CV-132-A ) Before GARWOOD, SMITH, and DeMOSS, Circuit Judges. PER CURIAM:* Appellant Barbara Sanders fil..
More
United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
For the Fifth Circuit September 19, 2005
Charles R. Fulbruge III
Clerk
No. 04-10600
BARBARA SANDERS,
Plaintiff-Appellant,
VERSUS
JO ANNE B. BARNHART,
Commissioner of Social
Security,
Defendant-Appellee.
Appeal from the United States District Court
For the Northern District of Texas, Fort Worth Division
( 4:03-CV-132-A )
Before GARWOOD, SMITH, and DeMOSS, Circuit Judges.
PER CURIAM:*
Appellant Barbara Sanders filed an appeal in district court,
contesting the decision of the Commissioner of the Social Security
Administration (the “Commissioner”) to deny her application for
disability insurance benefits. The magistrate judge recommended
both that the Commissioner’s decision be reversed and that the case
be remanded for a redetermination of Sanders’s onset date. The
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that this
opinion should not be published and is not precedent except under
the limited circumstances set forth in 5TH CIR. R. 47.5.4.
district court adopted the findings and conclusions of the
magistrate judge and entered judgment in favor of Sanders.
Sanders thereafter moved for attorney’s fees under the Equal
Access to Justice Act (the “EAJA”) for reimbursement of fees and
costs in the amount of $12,589.10. The Commissioner objected to
the amount of the fees, arguing that it was excessive. The
district court granted Sanders’s application in part, finding that
the attorney’s fees sought by Sanders were excessive to the extent
that the request for fees represented work — a review of the record
by Sanders’s briefing attorney — with which Sanders’s trial counsel
was already familiar. Accordingly, the district court reduced the
number of billable hours by twenty and awarded Sanders’s attorney’s
fees in the amount of $9,816.50 plus $150 in court costs. Sanders
timely filed the instant appeal, challenging the reduction.
DISCUSSION
We review an award of attorney’s fees under the EAJA for an
abuse of discretion. United States v. Truesdale, 211 F.3d 898, 905
(5th Cir. 2000) (citing Pierce v. Underwood,
487 U.S. 552, 553
(1988)). Legal determinations underlying the district court’s
decision are reviewed de novo.
Id. at 906 (citation omitted). The
district court’s conclusions of fact are reviewed for clear error.
Aguilar-Ayala v. Ruiz,
973 F.2d 411, 416 (5th Cir. 1992). “Because
EAJA is a partial waiver of sovereign immunity, it must be strictly
construed in the government’s favor.” Tex. Food Indus. Ass’n v.
2
USDA, 81 F.3d 578, 580 (5th Cir. 1996)(citation omitted). As the
fee applicant, Sanders has the burden of demonstrating the
reasonableness of the number of hours expended on the prevailing
claim. Von Clark v. Butler,
916 F.2d 255, 259 (5th Cir. 1990)
(noting that the burden “does not shift to the opposing party
merely because that party does not show that the hours are
unreasonable or that it did not make specific objections to the
hours claimed”).
Sanders’s primary argument on appeal is that the district
court erred in refusing to compensate her for all the time spent by
the briefing attorney reviewing the record in preparation for
appealing her case to the district court. In support of her
contention, Sanders maintains there was no overlap in the work
performed by her trial counsel and the work her briefing attorney
undertook in preparing her appeal. In response, the Commissioner
argues that Sanders’s trial counsel cannot bill the government for
fees he could not properly bill Sanders, his client. According to
the Commissioner, Sanders’s trial counsel was already familiar with
the case as he had handled both the administrative hearing and
appeal request to the Appeals Council. The Commissioner adds that
the 86.15 of hours requested by Sanders’s briefing attorney is
excessive for an essentially routine Social Security case that did
not “involve difficult or novel issues, or recent changes in the
law.” The Commissioner maintains the district court’s award more
than adequately compensated Sanders and her attorneys.
3
The district court specifically determined that:
[T]he attorneys’ fees sought by plaintiff are excessive
to the extent that they seek reimbursement for review of
the record by the attorney who wrote plaintiff’s briefs.
Although it may have been more efficient for plaintiff’s
counsel to use the services of another attorney for the
briefing, that attorney spent at least twenty hours
reviewing the records that plaintiff’s counsel would
already have been familiar with.
Despite this finding, the district court nevertheless recognized
the propriety of the remainder of Sanders’s application for fees,
concluding that “[t]he court is not persuaded that the fees
requested should be reduced otherwise.”
An award of attorney’s fees under the EAJA must be reasonable.
See 28 U.S.C. § 2412(b). In determining the reasonableness of such
fees, this Court has adopted the 12-factor “lodestar” test
enunciated in Johnson v. Georgia Highway Express, Inc., 488 F.2d
714 (5th Cir. 1974).2 The district court did not engage in an
analysis using the Johnson framework. Sanders argues that because
of this failure on the part of the district court, this Court must
remand the case to compel the district court to provide further
explanation. We disagree. This Court has previously held that it
2
The twelve factors include: (1) the time and labor required;
(2) the novelty and difficulty of the questions; (3) the skill
requisite to perform the legal service properly; (4) the preclusion
of other employment by the attorney due to acceptance of the case;
(5) the customary fee; (6) whether the fee is fixed or contingent;
(7) time limitations imposed by the client or the circumstances;
(8) the amount involved and the results obtained; (9) the
experience, reputation, and ability of the attorneys; (10) the
“undesirability” of the case; (11) the nature and length of the
professional relationship with the client; and (12) awards in
similar cases. Johnson, 488 F.2d at 717-19.
4
is not necessary for a district court to examine each of the
factors independently if it is apparent that the court has arrived
at a just compensation based upon appropriate standards. See Cobb
v. Miller, 818 F.2d 1227, 1232 (5th Cir. 1987).
The Commissioner admitted in its objection to Sanders’s
application for attorney’s fees that it did not oppose an award of
costs and fees in this case. Rather, the Commissioner’s principal
contention focused on what it deemed to be an excessive amount of
hours claimed by Sanders’s briefing attorney. Importantly, the
district court limited its ruling solely on that distinct issue.
It is well within the district court’s discretion to conclude that
a second attorney brought onto a case may not recover fees for work
previously performed by the first attorney. Sanders has failed to
carry her burden of establishing that the district court’s finding
that Sanders’s briefing attorney expended at least 20 hours of
duplicative record review was not clearly erroneous. In the
absence of such evidence, we conclude the district court did not
abuse its discretion when it reduced Sanders’s fees and costs
recoverable under the EAJA.
CONCLUSION
Having carefully reviewed the entire record of this case, and
having fully considered the parties’ respective briefing, we find
no reversible error in the district court’s decision to reduce the
award of attorney’s fees recoverable by Sanders. We therefore
5
AFFIRM the final judgment of the district court for the reasons
stated in its order.
AFFIRMED.
6
