Michelle De Ann Cox v. Carolyn W. Colvin, No. 3:2016cv07183 - Document 30 (N.D. Cal. 2018)

Court Description: ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION FOR ATTORNEYS FEES by Judge William Alsup [granting in part and denying in part 23 Motion for Attorney Fees]. (whasec, COURT STAFF) (Filed on 8/6/2018)
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Michelle De Ann Cox v. Carolyn W. Colvin Doc. 30 1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE NORTHERN DISTRICT OF CALIFORNIA 8 9 MICHELLE DE ANN COX, 11 For the Northern District of California United States District Court 10 12 13 Plaintiff, No. C 16-07183 WHA v. 15 NANCY A. BERRYHILL, Deputy Commissioner for Operations, performing duties and functions not reserved to the Commissioner of Social Security, 16 Defendant. 14 ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION FOR ATTORNEY’S FEES / 17 18 19 INTRODUCTION In this social security appeal, plaintiff requests the award of attorney’s fees and costs 20 under the Equal Access to Justice Act, 28 U.S.C Section 2341(a) and (d). Plaintiff requests any 21 award be paid directly to her attorney. For the below listed reasons, plaintiff’s request is 22 GRANTED IN PART and DENIED IN PART. 23 24 STATEMENT Plaintiff Michelle De Ann Cox previously applied for disability benefits and was denied 25 by an ALJ. Plaintiff appealed her decision to district court in 2015 and Magistrate Judge 26 Jacqueline Scott Corley remanded plaintiff’s case, finding that the ALJ had improperly 27 discounted the opinions of medical professionals cited by plaintiff. On remand, a different 28 ALJ evaluated the medical evidence and almost entirely adopted the analysis of the original Dockets.Justia.com 1 ALJ, including the errors indicated by Judge Corley. Plaintiff again appealed the second ALJ 2 decision and a prior order remanded the decision due to its failure to properly weigh the medical 3 evidence — the undersigned judge thereby granted in part plaintiff’s motion for summary 4 judgment. Plaintiff now applies for $13,404 in attorney’s fees under the Equal Access to Justice 5 Act (EAJA) and requests that the fees be paid directly to her attorney to compensate both the 6 attorney and his law clerk. Defendant failed to timely respond to plaintiff’s motion. After 7 being ordered to show cause, defendant ultimately filed a response that disputed only the 8 reasonableness of plaintiff’s requested award (Dkt. Nos. 1, 21, 23, 26–27). ANALYSIS 9 1. 11 For the Northern District of California United States District Court 10 PAYMENT OF ATTORNEY’S FEES. Pursuant to the EAJA, a party can receive attorney’s fees if (1) a party “prevails” in a 12 civil action and (2) the government’s position in the action, including in the underlying 13 administrative proceedings, is not “substantially justified.” 28 U.S.C 2 § 412(d)(1)(A); 14 Yespovich v. Colvin, 166 F. Supp. 3d 1000, 1002 (N.D. Cal. 2015). Here, plaintiff is entitled 15 to attorney’s fees. 16 First, a party that obtains a reversal and remand in a social security benefits case is a 17 prevailing party under the EAJA. Gutierrez v. Barnhart, 274 F.3d 1255, 1257 (9th Cir. 2001). 18 Given that plaintiff’s benefits appeal was reversed and remanded, plaintiff is a prevailing party 19 for the purposes of the EAJA. 20 Second, plaintiff contends that the Deputy Commissioner’s position was not 21 substantially justified, as evidenced by the two reversals and remands of the Deputy 22 Commissioner’s analysis. No special circumstances have been alleged that would render unjust 23 an award of attorney’s fees to plaintiff. § 2412(d)(1)(A). The Government bears the burden to 24 show that its position was substantially justified. Meier v. Colvin, 727 F.3d 867, 870 (9th Cir. 25 2013). The Deputy Commissioner does not dispute that her position fell short of substantially 26 justified. Further, a prior order found that on remand, the ALJ’s rejection of plaintiff’s treating 27 doctor’s opinion was not justified by the requisite “clear and convincing reasoning supported by 28 substantial evidence.” See Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th. Cir. 2008). 2 1 A finding that an agency’s decision lacked substantial evidence is a strong indication that the 2 position of the United State was unjustified. Meier, 727 F.3d at 872 (quoting Thangaraja v. 3 Gonzales, 428 F.3d 870, 874 (9th Cir. 2005)). This order agrees with both parties that plaintiff 4 is entitled to attorney’s fees. 5 2. REASONABLENESS OF FEES AND EXPENSES. 6 A plaintiff bears the burden of establishing the reasonableness of the requested fee 7 award under the EAJA. A plaintiff must thereby “document the appropriate hours spent in 8 litigation by submitting evidence in support of those hours worked.” Gates v. Deukmejian, 987 9 F.2d 1392, 1397 (9th Cir.1992). The appropriate number of the hours expended includes hours “reasonably expended in pursuit of the ultimate result achieved, in the same manner that an 11 For the Northern District of California United States District Court 10 attorney traditionally is compensated by a fee-paying client for all time reasonably expended on 12 a matter,” Hensley v. Eckerhart, 461 U.S. 424, 431 (1983), and thus does not include hours 13 that are “excessive or duplicative,” Costa v. Comm’r of Soc. Sec. Admin., 690 F.3d 1132, 1135 14 (9th Cir. 2012). It follows that fee-shifting does not extend to effort expended on issues not 15 actually adjudicated, Hardisty v. Astrue, 592 F.3d 1072, 1077 (9th. Cir. 2010), though courts 16 should generally defer to the judgment of the winning attorney to determine the appropriate 17 fee award under the EAJA, Costa, 690 F.3d at 1136. 18 The Deputy Commissioner correctly indicates that in the instant case, not all of 19 plaintiff’s arguments were adjudicated, as explained below. Our court of appeals mandates 20 that no fees should be awarded for time spent preparing non-adjudicated issues. Hardisty, 21 592 F.3d at 1077. Accordingly, the full fee award requested cannot reasonably be awarded. 22 23 24 25 26 27 28 3 1 If reducing a fee award, a district court must offer a clear explanation. Moreno v. City of 2 Sacramento, 534 F.3d 1106, 1113 (9th Cir. 2008). This order concludes that plaintiff should be 3 awarded $9,500.33 and will now explain why this figure is appropriate. 4 DESCRIPTION OF WORK HOURS GOVERNMENT’S OBJECTIONS 5 DATE 6 06/30/2017 Start drafting law of case. 1.00 Not all legal arguments were adjudicated. 07/01/2017 More draft law of case; final edit; email Mr. Weems. 4.80 Not all legal arguments were adjudicated. 07/08/2017 More draft of summary judgment; compare prior litigation stance. 1.00 Not all legal arguments were adjudicated. 07/09/2017 More draft of summary judgment. 2.00 Not all legal arguments were adjudicated. 07/12/2017 More draft motion of summary judgment re: arg #3. Westlaw research and finalize; e-mail Mr. Weems to review. 8.00 Not all legal arguments were adjudicated. 09/01/2017 Draft motion for summary judgment section dealing with the demand for payment or remand for further proceedings, specifically application of credited-as-true rule and propriety of remand for payments based on B criteria of multiple listings. 3.70 Not all legal arguments were adjudicated. 09/05/2017 Review and revise motion draft discussion of credibility assessment issues. 4.10 Not all legal arguments were adjudicated. 09/09/2017 Review and revise motion further development of step three issues; further development of credibility issues. 4.00 Not all legal arguments were adjudicated. 09/10/2017 Review and revise motion for summary judgment, update introduction and fact discussions; re-examination of AR annotations re underdeveloped arguments. 2.80 Not all legal arguments were adjudicated. 7 8 9 11 For the Northern District of California United States District Court 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 1 2 3 09/11/2017 Review and revise motion for summary judgment; drafting re vocational expert; review AR re same. 1.70 Not all legal arguments were adjudicated. 09/16/2017 Review and revise motion for summary judgment. 5.00 Not all legal arguments were adjudicated. 09/18/2017 Continued revision of brief, rework and streamline facts, arguments and discussion. 4.20 Not all legal arguments were adjudicated. 09/25/2017 Revise and streamline brief. 3.40 Not all legal arguments were adjudicated. 09/26/2017 Revise and streamline brief; finalize same. 3.30 Not all legal arguments were adjudicated. 4 5 6 7 8 9 DESCRIPTION OF WORK HOURS GOVERNMENT’S OBJECTIONS DATE 11 For the Northern District of California United States District Court 10 12 13 14 In the above listed hours, plaintiff’s counsel billed for time spent drafting the motion for 15 summary judgment, which contained several pages of material never adjudicated, and time 16 spent researching and drafting specific portions of the motion which were never adjudicated. 17 Six pages of plaintiff’s 25-page brief were devoted to material not considered in the second 18 remand for further proceedings. Accordingly, 24 percent of drafting this motion for summary 19 judgment should not be compensated and work on discrete non-adjudicated issues should be 20 entirely uncompensated. The order granting summary judgment, however, adjudicated the 21 briefed issue of improper weighing of medical evidence and relied upon case background, 22 which together constituted the majority of plaintiff’s brief. The compensation for the work 23 performed on June 30 and July 1, 8, and 9 has accordingly been reduced by 24 percent, as has 24 the work performed on September 10, 16, 18, 25, and 26. The work on July 12 and September 25 5 and 9 cannot be compensated. Plaintiff may be compensated for half the work performed on 26 September 11. Plaintiff may thus be awarded $9,500.33 in attorney’s fees. 27 28 The Deputy Commissioner argues that plaintiff’s fee award should be half of what plaintiff requests, or $6,702. The fee award, she posits, should be further reduced given 5 1 plaintiff’s counsel’s expertise and due to the time customarily invested in litigating social 2 security benefits appeals. When awarding fees under the EAJA, not only should courts defer 3 to the winning counsel’s assertion of the proper fee award, but courts cannot impose a de facto 4 limit on fee awards based on the time usually spent litigating “routine” social security cases. 5 See Costa, 690 F.3d at 1136. Defendant’s arguments are thus not persuasive in further reducing 6 the fee award. 7 3. 8 A plain reading of the Anti-Assignment Act, which generally forbids an assignment of 9 DIRECT PAYMENT TO ATTORNEY. the right to be paid directly from the United States Treasury, mandates that an interest in a case cannot be assigned unless the requirements for the assignment enumerated in the Act are met. 11 For the Northern District of California United States District Court 10 See United States v. Kim, 806 F.3d 1161, 1165–69 (9th Cir. 2015). Alternatively, the 12 Government can waive the requirements of the Act. United States v. $186,416 in United States 13 Currency, 722 F.3d 1173, 1176 (9th. Cir. 2013). The attorney, however, has no statutory right 14 to the direct payment of the attorney’s fee award under the EAJA. Parties can contract for 15 such a direct assignment, but the Government must either waive the requirements of the 16 Anti-Assignment Act or the assignment must comport with the Act in order to effectuate 17 direct payment to the attorney. Further, EAJA fees are subject to offset if the prevailing party 18 owes a government debt. Astrue v. Ratliff, 560 U.S. 586, 591–97 (2010). 19 Here, plaintiff’s counsel has submitted a fee agreement that indicates plaintiff had 20 assigned any attorney’s fee award under the EAJA to counsel (Dkt. No. 24, Exh. 1). There is no 21 information on whether plaintiff owes a pre-existing debt to the government. Accordingly, this 22 order holds EAJA fees shall be paid directly to plaintiff’s counsel. 23 24 25 26 27 28 6 1 2 CONCLUSION For the reasons above, plaintiff’s motion for attorney’s fees is GRANTED IN PART and 3 DENIED IN PART. Plaintiff is entitled to recover reasonable attorney’s fees in the amount of 4 $9,500.33, to be paid directly to plaintiff’s counsel. The August 16 hearing is thereby 5 VACATED. 6 7 IT IS SO ORDERED. 8 9 Dated: August 6, 2018. WILLIAM ALSUP UNITED STATES DISTRICT JUDGE 11 For the Northern District of California United States District Court 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7