Marie Dorame v. Martin O'Malley

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 5 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT MARIE DOLORES DORAME, No. 23-15720 Plaintiff-Appellant, D.C. No. 4:20-cv-00285-JAS v. MEMORANDUM* MARTIN J. O'MALLEY, Commissioner of Social Security, Defendant-Appellee. Appeal from the United States District Court for the District of Arizona James Alan Soto, District Judge, Presiding Submitted April 3, 2024** Phoenix, Arizona Before: HAWKINS, BYBEE, and BADE, Circuit Judges. Partial Dissent by Judge BYBEE. Marie Dolores Dorame (“Dorame”) appeals the district court’s order awarding $13,381.31 in attorneys’ fees under the Equal Access to Justice Act after she succeeded in her underlying claims for social security benefits. The amount awarded * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). was approximately $2000 less than originally requested. We review the district court’s fee award for an abuse of discretion. Le v. Astrue, 529 F.3d 1200, 1201 (9th Cir. 2008). The district court found “merit in Defendant’s objections,” implicitly accepting the Commissioner’s objection that a specific nine hours of work was duplicative and reducing the corresponding fee award by nine hours. Although this explanation is not a picture of clarity, we can discern the court’s rationale, and we have also held that minor reductions such as this do not require a detailed explanation by the court. Moreno v. City of Sacramento, 534 F.3d 1106, 1111 (9th Cir. 2008). However, the district court’s order does not address the additional fees Dorame requested for time spent on the EAJA fee litigation itself. “Fees on fees” are permitted, Thompson v. Gomez, 45 F.3d 1365, 1367 (9th Cir. 1995), and here, counsel was completely successful on the merits and received the vast majority of the fee award originally requested. We, therefore, remand with instructions for the district court to increase the fee award by the additional amount requested in Dorame’s Reply to Defendant’s Opposition to Plaintiff’s Motion for Award of Attorney Fees Under the Equal Access to Justice. [Dist. Ct. Dkt. #53 at 8-9]. AFFIRMED IN PART, REMANDED IN PART. Each party to bear its own costs on appeal. 2  FILED Dorame v. O’Malley, No. 23-15720 APR 5 2024 MOLLY C. DWYER, CLERK BYBEE, Circuit Judge, dissenting in part: U.S. COURT OF APPEALS I agree with the panel’s decision to remand for the district court to increase Plaintiff’s fee award commensurate with the amount of time spent on the EAJA fee litigation. However, I disagree that the court sufficiently explained its decision to write off the nine hours that Defendant claimed were duplicative. Defendant’s principal assertion is that one of Plaintiff’s attorneys over-billed by nine hours for the time he spent reviewing the work of another attorney. With a record exceeding 5,000 pages of medical information, that does not strike me as unreasonable. Nevertheless, the district court “f[ound] merit in Defendant’s objections.” The majority correctly observes that we have held “minor reductions such as” the nine- hour write-down here “do not require a detailed explanation.” But they do require some explanation. Moreno v. City of Sacramento, 534 F.3d 1106, 1111 (9th Cir. 2008). Stating that one side has it right is no explanation at all—it is merely a conclusion. Since the district court gave no greater rationale for the nine-hour reduction than it did the EAJA fee-litigation reduction, I would remand for the court to furnish the minimal explanation required by our precedents. Accordingly, I respectfully dissent. 1