BYRD v. COMMISSIONER OF SOCIAL SECURITY, No. 2:2018cv05248 - Document 31 (E.D. Pa. 2020)
Court Description: MEMORANDUM OPINION. SIGNED BY MAGISTRATE JUDGE RICHARD A. LLORET ON 6/25/20. 6/25/20 ENTERED AND COPIES E-MAILED.(amas, )
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BYRD v. COMMISSIONER OF SOCIAL SECURITY Doc. 31 IN TH E U N ITED S TATES D ISTRICT COU RT FOR TH E EASTERN D ISTRICT OF PEN N SYLVAN IA AN TON IO MICH AEL BYRD , Plain tiff, v. AN D REW M. SAU L, Co m m is s io n e r o f S o cial Se cu rity, D e fe n d an t. : : : : : : : : : : : CIVIL ACTION N o . 18 -52 4 8 -RAL MEMORAN D U M OPIN ION Upon consideration of Plaintiff’s Motion for Attorney’s Fees pursuant to the Equal Access to J ustice Act (“EAJ A”), ECF Doc. No. 24, the Com m issioner’s response thereto, ECF Doc. No. 25, and the Plaintiff’s Reply, ECF Doc. No. 26, I have granted the Plaintiff’s m otion, and ordered the Com m issioner to pay attorney’s fees pursuant to EAJ A to Plaintiff in the am ount of $ 9,640 .80 . The reasons for this award are set forth below. I. The Litigation. Plaintiff Antonio Byrd filed a com plaint against Andrew M. Saul, Com m ission er of Social Security, in Decem ber of 20 18. ECF Doc. No. 2. On April 19, 20 19, Mr. Byrd filed his brief, through counsel David Cherm ol, Esq., raising three issues: (1) The ALJ ’s residual functional capacity (RFC) finding is, in actuality, an RFC for sedentary work, which would require a finding of disability; (2) The ALJ com m itted legal error in his application of the Agency’s m andatory Program Operations Manual System (POMS) rules, and in failing to explain his decision to apply the rules for light, rather than sedentary work, despite lim iting Plaintiff to two hours of standing and/ or walking per Dockets.Justia.com work day; an d (3) The presiding ALJ was not properly appointed under the Constitution and, therefore, lacked legal authority to hear and decide this case. ECF Doc. No. 12 at page 2. On May 6, 20 19, the Com m issioner filed a substantive response. ECF Doc. No. 13. On May 13, 20 19, Plaintiff filed his reply. ECF Doc. No. 14. On J une 25, 20 19, the Com m issioner m oved for a stay of the litigation pending the outcom e of the appeal in Cirko on behalf of Cirko v. Com m issioner of Social Security , then pending in the Third Circuit. ECF Doc. No. 15. The Plaintiff opposed the m otion. ECF Doc. No. 16. On August 1, 20 19, I denied the m otion for stay. ECF Doc. No. 17. On J anuary 23, 20 20 , I entered judgm ent in favor of the Plaintiff, and rem anded the case for a rehearing before a properly appointed ALJ . ECF Doc. Nos. 19 and 20 . The Com m ission er appealed the judgm ent to the Third Circuit on March 20 , 20 20 but dism issed the appeal on April 28 , 20 20 . ECF Doc. Nos. 21-23. II. The Motion for Attorney’s Fees. Plaintiff filed a m otion for attorney’s fees pursuant to EAJ A on May 25, 20 20 . ECF Doc. No. 24. Plaintiff sought paym ent for 44.9 hours of work, at the rate of $ 20 6 per hour, as the prevailing party. 1 Plaintiff included a Statem ent of Attorney Tim e Expended, docum enting the hours expended on the case. Plaintiff argued that the governm ent’s position was not substantially justified and requested additional fees as required, “If SSA files a frivolous EAJ A response as it has done in several cases[.]” Id. at 4. 1 The total sought by Plaintiff was in itially $ 9,249.40 . For the additional tim e expended filin g a reply to the Com m issioner’s opposing response, Plaintiff seeks an additional $ 391.40 . 2 On J une 5, 20 20 , the Com m issioner filed a response in opposition to the m otion. ECF Doc. No. 25. The Com m issioner alleged that its position in the litigation was substantially justified, and thus no fees should be awarded. In the alternative, the Com m issioner argued that the fees requested were unreasonable, as defined in Hensley v. Eckhart, 461 U.S. 424, 433 (1983), and requesting a reduction in the fee to $ 5,0 0 0 .0 0 . 2 The Com m issioner did not dispute the rate of $ 20 6 per hour, which Plaintiff had calculated from the statutory amount of $ 125.0 0 per hour based upon the Consum er Price Index prepared by the Bureau of Labor and Statistics. See www.bls.gov. 3 Although the Com m issioner appears to acknowledge in his conclusory paragraph that the Plaintiff appropriately raised issues other than the constitutionality of the ALJ ’s appointm ent in his brief, he also argues that Plaintiff is not entitled to the am ount of fees the Plaintiff contends was n ecessary in order to research and write those argum ents. Should this Court reject the substantial justification position above, the Com m issioner opposes Plaintiff’s m otion because he seeks an unreasonable num ber of hours for his attorney’s work, especially given that rem an d here was based on Plaintiff’s Appointm ents Clause argum ent only. This argum ent, raised by counsel in other cases, consisted of boilerplate language found in other briefs. ECF Doc. No. 25 at 9. Although the Com m issioner argues in a general way that an attorney m oving for fees pursuant to EAJ A should “exclude from a fee request hours that are excessive, 2 The Com m issioner does not m ake any argum ent regarding what specific hours contained in Plaintiff’s billin g should be reduced, arguing instead that Plaintiff is entitled to $ 5,0 0 0 “to cover the hours necessary to cut and paste the sam e argum ent [the con stitutionality of the ALJ ’s appointm ent] and develop his other argum ents.” ECF Doc. No. 25 at 9. 3 Dividin g $ 20 6 per hour into $ 5,0 0 0 would yield approxim ately 24.25 hours, or a reduction of m ore than 20 hours. 3 redundant, or otherwise unnecessary, just as a lawyer in private practice ethically is obligated to exclude such hours from his fee subm ission,” quoting Hensley , 461 U.S. at 434, the Com m issioner m akes no specific argum ent regarding which fees, if any, he contends are excessive, redundant, or unnecessary, other than noting the fact that Plaintiff’s third argum ent regarding the Appointm ents Clause, which was ultim ately the successful one, was copied and pasted in several briefs filed by Plaintiff’s counsel in other cases. Although not explicitly stated, it appears the Com m issioner is urging a reduction in Plaintiff’s fees because the Plaintiff only won on the Appointm ents Clause issue, an d not the other two substantive issues raised. 4 Plaintiff filed a reply on J une 11, 20 20 , ECF Doc. No. 26, arguing that the Com m issioner cannot m eet his burden of establishing substantial justification. Id. at 29. Regarding the Com m issioner’s other objections regarding Plaintiff’s other issues, Plaintiff noted that the case cited by the Com m issioner, Sm all v. Berry hill, 18 -cv-50 43CSMW (E.D. Pa.) is not reported in Westlaw, and therefore the opinion was unavailable for Plaintiff to review. 5 Plaintiff further argues that the Com m issioner’s position that a flat fee of $ 5,0 0 0 is appropriate here does not take into account the fact that 40 to 50 hours has repeatedly been found by courts around the country to be a reasonable am ount of tim e to investigate and bring such appeals. Finally, the Plaintiff suggests that the vexatious nature of the Com m issioner’s objection to EAJ A fees in this case, and others in which the cases have been rem anded due to a violation of the Appointm ents Clause, would support an award of both 1.9 hours of additional fees for the Plaintiff’s 4 Because the case is to be rem anded to a different, constitutionally appointed ALJ , there was no reason for the other two issues to be addressed in the opin ion. 5 Because of the sensitive personal inform ation frequen tly contained in Social Security appeals, the dockets and parties’ filings are not available to the public through PACER or other onlin e products, as other litigation m ay be. 4 preparation of its reply brief, and so-called “bad faith” fees, which would allow for billing at the m uch higher rate of $ 595 per hour under the Departm ent of J ustice’s Laffey Matrix. Id. at 12-13. III. Resolution of the Fee Dispute. Where the governm ent asserts a position that has not been precluded by controlling precedent, that position m ay be “substantially justified,” thus avoiding an award of attorneys’ fees. See Hanover Potato Products, Inc. v. Shalala, 989 F.2d 123, 131 (3d Cir. 1993) (“neither the Suprem e Court nor this court has addressed the argum ent raised by the FDA in the m erits litigation”). But where the governm ent advocates a position that “clearly offends . . . established precedents,” it “has no reasonable basis an d is not substantially justified,” m aking an award of attorneys’ fees appropriate under EAJ A. W ashington v. Heckler, 756 F.2d 959, 968 (3d Cir. 1985); see Grossberg v. Barnhart, 20 0 5 WL 70 3736, at *2 (3d Cir. 20 0 5) (not precedential) (finding the Social Security Adm inistration’s position was not “substantially justified” because the ALJ ’s opinion was in “clear contradiction” of Third Circuit precedent). The governm ent’s position in this case was in clear contradiction of Sim s v. Apfel, 530 U.S. 10 3 (20 0 0 ). The governm ent argued that plaintiff was required to exhaust the Appointm ents Clause issue before the Adm inistrative Law J udge. ECF Doc. No. 13 (hereafter “Def. Br.”) at 10 . In Sim s, the Suprem e Court held that issue exhaustion was not required in Social Security disability litigation by statute, by adm inistrative regulation, or by judicial rule. Sim s, 530 U.S. at 10 7-110 . The governm ent was entitled to argue in good faith that clearly applicable Suprem e Court precedent should be distinguished or reevaluated. But a good faith argum ent sufficient to avoid sanctions under Fed. R. Civ. Pro. 11 is not the 5 sam e as a “substantially justified” position under EAJ A. When the governm ent chooses to advance a position that controlling precedent has rejected, it m ust do so “on its own dim e,” so to speak, under EAJ A. The Third Circuit’s opinion in Cirko on behalf of Cirko v. Com m . of Social Security , 948 F.3d 148 (3d Cir. 20 20 ) sim ply applied Sim s to the facts of this case, finding that issue exhaustion was not required. Cirko, 948 F.3d at 155. The outcom e was entirely predictable, given the clear language of Sim s. The holding in Sim s is alm ost 20 years old and has not been seriously questioned since. The Social Security Adm inistration’s position “clearly offend[ed] . . . established precedent[]” and was not substantially justified, under EAJ A. The Com m issioner argues in his opposition to the Plaintiff’s Motion for Attorney’s Fees that m any district courts throughout the country adopted its position, and that this widespread adoption suggests that its position was “substantially justified.” ECF Doc. No. 25 (hereafter “Def. Resp.”) at 5-6. As I have pointed out previously, the district court opinions adopting the Com m issioner’s position do so, in the vast m ajority of cases, without detailed analysis, and certainly without taking into account the clearly applicable holding in Sim s. The reality of our federal system is this: if the Suprem e Court has announced the law on a given subject, that is the law for district courts, whether or not all 94 district courts say otherwise. If the governm en t chooses to challenge that law, it m ay do so through litigation. But under EAJ A it does so at its own risk: it cannot force Social Security disability applicants to pay for attorneys to enforce a legal principle previously settled by the Suprem e Court. I therefore find that the Com m issioner’s position was not substantially justified in this case. The only issue rem ain ing, therefore, is whether the fees detailed by Plaintiff’s counsel in handling this litigation are reasonable. Once the party seeking fees has 6 provided an attorney’s affidavit attesting to the hours expended, the court m ay only reduce the requested hours if the opposing party raises specific challenges to the accuracy or necessity of the tim e assigned to specific tasks. See United States v. Eleven Vehicles, 20 0 F.3d 20 3, 211-12 (3d Cir. 20 0 0 ), citing Cunningham v. City of McKeesport, 753 F.2d 262, 266 (3d Cir. 1985). The Com m issioner m akes little in the way of specific claim s that on e or m ore entries in Plaintiff’s Statem ent of Attorney Tim e Expended was unreasonable, (ECF Doc. No. 24-1), m erely arguing that a flat fee of $ 5,0 0 0 is “reasonable,” because (1) “the identical substantive issues were raised in the case of Sm all v. Berry hill, 5:18 -cv-0 50 43CSMW, E.D. Pa. and this Court affirm ed the Com m ission er’s decision on Novem ber 21, 20 19[, t]hus, this Court has already rejected the argum ents raised by Plaintiff in this m atter;” and (2) the issue on which Plaintiff prevailed, concerning the failure to constitutionally appoint the ALJ who heard the case, was “cut and pasted” from other cases also handled by Plaintiff’s counsel. I am not persuaded by either argum ent. Plaintiff’s counsel began his file review, identification of legal issues, and drafting of his brief on April 12, 20 19, and spent a little m ore than three days reviewing the file, which was large, containing m ore than 1,0 0 0 pages, researching, and writing the Plaintiff’s opening brief. See ECF Doc. No. 24-1, pp. 2-3, entries for 4/ 12/ 19, 4/ 14/ 19, 4/ 17/ 19, and 4/ 18/ 19. Of the total tim e charged by Plaintiff’s counsel, these four entries account for 28.7 of the 44.9 hours charged. I find, having read the m erits briefs from both parties in this case, that Plaintiff’s counsel consistently put in a great deal of effort to produce his written product. Such effort takes tim e, especially when there is a lengthy record, as there was here. I find that the Com m issioner’s criticism s unfairly im pugn Plaintiff’s counsel for working hard to produce a good product. Working hard for that 7 goal is not to be discouraged; rather, it should be rewarded by fair com pensation. Furtherm ore, I agree with Plaintiff’s position in his reply brief, ECF Doc. No. 26 at 9-10 , that EAJ A fees should not be denied because another judge in this court decided a sim ilar issue in favor of the Com m issioner. It was the duty of Plaintiff’s counsel to identify and brief all potential issues that counsel believed had a likelihood of success. Even if Plaintiff’s counsel had a way of reviewing the docum ents in Sm all v. Berry hill, 18 -cv-50 43-CSMW (E.D. Pa.), because Social Security litigation is n aturally fact-driven, it is unlikely that another judge’s decision on different facts would have altered the calculus here in favor of abandoning the issues. I also disagree with the Com m issioner’s argum ent that Plaintiff’s fees should be reduced because his third argum ent, that the ALJ was im properly appointed, was sim ilar to argum ents raised in other cases handled by Plaintiff’s attorney. First, a general claim that the Plaintiff used argum ents “cut and pasted” from other cases, with a request to cut the fees by nearly half, is not a “specific challenge” as contem plated in Eleven Vehicles, 20 0 F.3d at 211-12, or Cunningham , 753 F.2d at 266. The Com m issioner does not point to any specific date or any specific task in the fee statem ent as having been unreasonably charged, m aking only the blanket argum ent that the dollar am ount of the fee should be reduced by close to fifty percent. Second, sim ply because an attorney utilizes a legal argum ent that he has written in a separate case does not m ean that he has failed to expen d tim e on the case at issue assuring that he is m aking a proper argum ent. As recently noted by Magistrate J udge Carole Sandra Moore Wells in Arm strong v. Saul, No. 19-cv-20 94 (E.D. Pa. J une 9, 20 20 ): although the Appointm ents Clause argum en ts counsel raised in this case were sim ilar to argum ents he presented in other cases, counsel’s tim e was required to tailor his argum ents to the facts in this case. While the Com m issioner m ay think 8 that this effort is unjustified, this court disagrees. Making sure that argum ents one has raised in a different case fit the instant m atter is precisely what a good lawyer should and would do. That effort takes tim e. This court finds that the work product of Plaintiff’s counsel illustrates that he spent his tim e litigating this case effectively and reasonably. Id. at 7. Finally, although I have included paym ent to the Plaintiff of an additional 1.9 hours at the rate of $ 20 6 per hour for preparation of a reply in the EAJ A litigation, I will declin e to find that the Com m ission er acted in bad faith such that an award of fees at the m arket rate of $ 595 per hour is appropriate. Although there appears to be no Third Circuit case addressing the topic, other courts finding such an award appropriate have indicated conduct by the losing party during the litigation that would be considered m ore egregious than that engaged in by the Com m issioner here. See Hy att v. Shalala, 6 F.3d 250 , 255– 56 (4th Cir. 1993) (granting of m arket rate fees based on “conduct that continued throughout th[e] litigation”); Brow n v. Sullivan, 916 F.2d 492, 496 (9th Cir. 1990 ) (“Still, despite the court order, the Secretary failed to produce the transcription within the ordered tim e period.”); Aero Corp. v. Dep't of the N avy , 558 F. Supp. 40 4, 420 (D.D.C. 1983) (“The facts dem onstrate bad faith in the litigation, including failure to follow Court Orders, and not m erely a failure to follow the law.” (em phasis in original)); Hinton v. Sullivan, No. 84 CIV. 9276 (CES), 1991 WL 123960 , at *1 (S.D.N.Y. J uly 2, 1991) (failure to follow court's rem and order); Velazquez v. Heckler, 610 F. Supp. 328 , 332 (S.D.N.Y. 1984) (finding pursuit of the litigation and refusal to rem and supported bad faith claim ); Mendoza v. Com m 'r of Soc. Sec., No. CV 13-617 (CCC), 20 17 WL 190 0 724, at *5 (D.N.J . May 9, 20 17) (“Plaintiff has not shown that a rem and order from the Appeals Council serves to establish ‘a clear statutory or judicially-im posed duty 9 towards another[,]’” quoting Am erican Hospital Ass'n v. Sullivan, 938 F.2d 216, 220 (D.C. Cir. 1991)). An appropriate order has been filed, in conform ity with this m em orandum opinion. BY TH E COU RT: _ / s R ich a r d A. Llo r e t _ _ _ _ _ _ _ _ _ _ RICH ARD A. LLORET U .S. Magis trate Ju d ge 10
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