Ronald Welch v. Michael J Astrue

Filing 37

MEMORANDUM OPINION AND ORDER GRANTING PLAINTIFFS MOTION FOR EAJA ATTORNEYFEES by Magistrate Judge Douglas F. McCormick: granting 31 Request for Attorney Fees. (twdb)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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EASTERN DIVISION

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RONALD WELCH,
Plaintiff,

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v.
CAROLYN COLVIN, Acting
Commissioner of Social Security,

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Defendant.

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Case No. ED CV 11-00740-DFM
MEMORANDUM OPINION AND
ORDER GRANTING PLANTIFF’S
MOTION FOR EAJA ATTORNEY
FEES

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On February 4, 2014, Plaintiff Ronald Welch filed a motion for award of

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attorney fees under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. §

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2412. Because the Court finds that the Commissioner’s position was not

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“substantially justified,” as discussed below, the Court grants Plaintiff’s motion

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for EAJA fees.

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I.

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FACTUAL AND PROCEDURAL BACKGROUND

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On March 29, 1999, Plaintiff applied for Social Security disability

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insurance benefits. On February 27, 2002, the ALJ issued an unfavorable

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decision. Plaintiff requested Appeals Council review. On July 15, 2003, the

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Appeals Council remanded the case to the ALJ for further proceedings. On

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August 28, 2003, the ALJ again denied benefits.
Plaintiff had 60 days, or until October 27, 2003, to request that the

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Appeals Council review the August 28, 2003 decision. 20 C.F.R. § 404.968.

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An untimely request for review results in the Appeals Council dismissing the

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request. 20 C.F.R. § 404.971. On September 25, 2003, Plaintiff’s counsel sent a

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letter by fax to the Appeals Council requesting review. When Plaintiff’s

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counsel had heard or received nothing in almost a year, Plaintiff’s counsel

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faxed a status request to the Appeals Council on August 9, 2004. After learning

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that the Appeals Council did not receive the request for review, Plaintiff’s

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counsel provided the Appeals Council with a fax cover sheet dated September

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25, 2003, a request for review dated September 25, 2003, and a fax

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transmission log showing that a fax had been sent to the Appeals Council on

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September 25, 2003.
On January 13, 2006, the Appeals Council dismissed Plaintiff’s request

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for review, finding that it was not filed within 60 days of the ALJ’s unfavorable

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decision, as required by 20 C.F.R. 404.968(a). The denial states in pertinent

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part:

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The representative, Bill LaTour, faxed a request for review for the

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claimant to the Appeals Council on March 29, 2005. The request

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for review is dated September 25, 2003 and a cover sheet dated

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September 25, 2003 is attached. There is also a “receipt” showing

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a fax was sent to the Appeals Council on September 25. However,

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the representative did not submit any clear proof that this

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particular request for review was faxed to the Appeals Council in a

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timely manner.

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On February 23, 2009, Plaintiff faxed a request to reopen the August

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2003 unfavorable decision, accompanied by a declaration by attorney Bill

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LaTour, signed under penalty of perjury, authenticating the September 2003
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request for review. On August 13, 2010, Plaintiff again requested that the

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Appeals Council reopen the August 2003 unfavorable decision. On March 30,

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2011, the Appeals Council denied review of the second application for benefits

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and again denied Plaintiff’s request to reopen the 2003 decision.1

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On May 16, 2011, Plaintiff appealed the denial of his request for review

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to this Court. On February 29, 2012, United States Magistrate Judge Marc L.

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Goldman dismissed Plaintiff’s complaint for lack of subject matter jurisdiction,

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finding that Plaintiff’s factual assertion that he timely filed his request for

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review with the Appeals Council did not set forth a colorable constitutional

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claim. Dkt. 22. Judge Goldman’s decision was limited to the question of

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whether Plaintiff had raised a colorable due process claim; because the Appeals

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Council had given Plaintiff a “fair opportunity to be heard” on his claim that

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he had submitted a timely request, Judge Goldman concluded that the Due

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Process Clause was not implicated even though he indicated that the Appeals

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Council’s decision was “certainly” subject to debate. Dkt. 22 at 6.
Plaintiff appealed this Court’s dismissal to the Ninth Circuit Court of

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Appeals. On October 17, 2013, the Ninth Circuit reversed:

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Although the Council’s dismissal order is not a final

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decision, the district court nonetheless had jurisdiction to review it

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under 42 U.S.C § 405(g) because Welch asserted a colorable

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constitutional claim. Califano v. Sanders, 430 U.S. 99, 109, 97

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S.Ct. 980, 51 L.Ed.2d 192 (1977); Matlock v. Sullivan, 908 F.2d

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492, 493–94 (9th Cir.1990). We recently held that due process

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requires the Commissioner to give “some explanation” when

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The parties filed a Joint Stipulation, to which all of the above-referenced
correspondence between Plaintiff’s counsel and the Appeals Council was
attached as an exhibit. See Dkt. 21.

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dismissing an apparently valid request for a hearing. Dexter v.

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Colvin, No. 12–35074, 731 F.3d 977, 980–81, 2013 WL 5434699,

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at *3 (9th Cir. Sept. 30, 2013). Because Welch provided the

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Council with evidence that, if credited, would establish that he

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timely filed the request for review, due process requires the

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Council to provide some explanation why it concluded to the

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contrary.

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We vacate the judgment of the district court and remand to

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the district court to remand to the Commissioner to consider the

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evidence that Welch timely filed his request for review and either

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to explain her decision dismissing the request or to treat it as

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timely.

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Welch v. Colvin, 542 F. App’x 609, 609-10 (9th Cir. Oct. 17, 2013). The

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Commissioner filed a petition for panel rehearing, which was summarily

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denied on November 26, 2013.

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On February 16, 2014, this case was randomly reassigned to the

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undersigned U.S. Magistrate Judge due to the retirement of Judge Goldman.

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II.

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DISCUSSION

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A.

Plaintiff Is Entitled to Attorney Fees as the Prevailing Party Because

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the Government’s Position Was Not Substantially Justified

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The EAJA provides that a court shall award reasonable attorney fees,

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court costs and other expenses to the prevailing party “unless the court finds

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that the position of the United States was substantially justified or that special

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circumstances make an award unjust.” 28 U.S.C. § 2412(d)(1)(A); accord

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Pierce v. Underwood, 487 U.S. 552, 565 (1988); Lewis v. Barnhart, 281 F.3d

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1081, 1083 (9th Cir. 2002). The term “‘position of the United States’ means, in

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addition to the position taken by the United States in the civil action, the
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action or failure to act by the agency upon which the civil action is based.” 28

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U.S.C. § 2412(d)(2)(D).

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A position is “substantially justified” if it has a “reasonable basis both in

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law and fact.” Pierce, 487 U.S. at 565. “Substantially justified” means

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“justified to a degree that could satisfy a reasonable person.” Id. More recently,

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the Ninth Circuit has clarified that the government’s position is “substantially

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justified” where supported by the record. Hardisty v. Astrue, 592 F.3d 1072,

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1080 (9th Cir. 2010) (“The government’s adverse credibility finding was

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substantially justified because all of the inferences upon which it rested had

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substance in the record.”). The government has the burden of proving its

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positions were substantially justified. Flores v. Shalala, 49 F.3d 562, 569-70

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(9th Cir. 1995). However, the mere fact that a court reversed and remanded a

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case for further proceedings “does not raise a presumption that [the

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government’s] position was not substantially justified.” Kali v. Bowen, 854

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F.2d 329, 334 (9th Cir. 1988.)

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The Commissioner has not met her burden to show that her position –

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and in particular the position which caused this civil action – was substantially

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justified. As noted, the term “position of the United States” includes the action

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or failure to act by the agency upon which the civil action is based. Here, the

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Court cannot find that the Appeals Council’s determination that Plaintiff’s

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faxed cover sheet, request for review, and dated fax transmittal log with the

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Council’s fax number was not “clear proof” that Plaintiff had timely appealed

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had a “reasonable basis . . . in fact.” If these documents, together with a

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declaration from Plaintiff’s counsel, do not constitute “clear proof” that

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Plaintiff’s counsel timely faxed a request for review to the Appeals Council, it

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is unclear what documentation Plaintiff could have provided to demonstrate a

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timely request. As noted by the Ninth Circuit, Plaintiff provided the Appeals

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Council with sufficient “evidence that, if credited, would establish that he
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timely filed the request for review.” Welch, 542 F. App’x at 609. The Appeals

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Council’s arbitrary rejection of this evidence, without “some explanation” to

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Plaintiff as to why it was “dismissing an apparently valid request for a

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hearing,” id., did not have a reasonable basis in fact.
Judge Goldman’s now-reversed decision that the Court lacked

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jurisdiction because the Commissioner had given Plaintiff the fair opportunity

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to be heard did not touch upon the underlying justification for the Appeals

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Council’s decision to dismiss Plaintiff’s request for review; it is that decision

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which is the “the action . . . by the agency upon which th[is] civil action is

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based.” See 28 U.S.C. § 2412(d)(2)(D). Indeed, Judge Goldman’s decision

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suggests the same doubts about the Appeals Council’s decision that this Court

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now makes clear, as he expressly noted that the decision was “certainly” open

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for debate.
Accordingly, the Court finds that the government has filed to show that

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its position was “substantially justified.” Plaintiff is entitled to an award of

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attorney fees under the EAJA as the prevailing party.

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B.

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The Hours Claimed by Plaintiff Are Reasonable
Plaintiff seeks an award in a total amount of $7,680.79, which consists of

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the following: (1) $5,978.30 for attorney work on the case, representing 34.15

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hours of attorney time at $175.06 per hour; (2) $1,146.25 for paralegal work on

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the case which includes 3.75 hours of paralegal time at $135 per hour and 4

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hours of senior paralegal time at $160 per hour; and (3) $551.19 for litigating

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this fee motion, representing 3 hours of attorney time at $183.73 per hour. The

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total number of hours for which Plaintiff is seeking attorney fees is 44.9 (37.15

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attorney hours and 7.75 paralegal hours).

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This Court has the discretion to evaluate the reasonableness of the

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number of hours claimed by a prevailing party. Sorenson v. Mink, 239 F.3d

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1140, 1145 (9th Cir. 2001); Gates v. Deukmejian, 987 F.2d 1392, 1398 (9th
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Cir. 1992). The Court should exclude hours that were not reasonably

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expended. Hensley v. Eckerhart, 461 U.S. 424, 434 (1992). In determining

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reasonableness, the Court must consider, among other factors, the complexity

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of the case or the novelty of the issues, the skill required to perform the service

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adequately, the customary time expended in similar cases, as well as the

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attorney’s expertise and experience. Kerr v. Screen Extras Guild, Inc., 526

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F.2d 67, 69-70 (9th Cir. 1975); Widrig v. Apfel, 140 F.3d 1207, 1209 (9th Cir.

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1998). In reducing a fee award, the Court must provide a reasonable

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explanation of how it arrived at the number of compensable hours in

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determining the appropriate fee. Sorenson, 239 F.3d at 1145; Hensley, 461

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U.S. at 437.

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The amount of time required to litigate any case can be highly variable

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and is the subject of much debate. The Ninth Circuit recently clarified that “it

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is [ ] an abuse of discretion to apply a de facto policy limiting social security

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claimants to twenty to forty hours of attorney time in ‘routine’ cases.” Costa v.

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Comm’r of Soc. Sec. Admin., 690 F.3d 1132, 1136 (9th Cir. 2012). Further,

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the court questioned “the usefulness of reviewing the amount of time spent in

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other cases to decide how much time an attorney could reasonably spend on

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the particular case before the court.” Id. Rather, the inquiry into the

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reasonableness of a fee request must be based on the facts of each case.

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Hensley, 461 U.S. at 429.

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The Court must generally give deference to the “winning lawyer’s

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judgment as to how much time he was required to spend on the case,”

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particularly in contingency fee cases, such as this one. Costa, 690 F.3d at 1136

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(citing Moreno v. City of Sacramento, 534 F.3d 1106, 1112-13 (9th Cir. 2008)

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(noting that “lawyers are not likely to spend unnecessary time on contingency

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fee cases in the hope of inflating their fees” because “[t]he payoff is too

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uncertain”). Here, after reviewing the time records counsel submitted and the
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pleadings in this matter, the Court finds that the total requested time of 44.9

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hours is reasonable. See, e.g., Russell v. Sullivan, 930 F.2d 1443, 1445 (9th

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Cir. 1991) (approving 54.5 hours as reasonable for services rendered before

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both the district court and the court of appeals in a social security case),

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abrogated on other grounds by Sorenson, 239 F.3d at 1149.2 The hours

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requested for each task, primarily in reviewing the record and drafting the

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briefs, appear reasonable and supported by sufficiently detailed billing records.

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III.

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CONCLUSION

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Plaintiff’s motion for EAJA fees is hereby GRANTED. It is ordered that
Plaintiff’s counsel be awarded fees in the amount of $7,680.79.

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Dated: April 21, 2014
______________________________
DOUGLAS F. McCORMICK
United States Magistrate Judge

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Defendant does not raise any challenge to the reasonableness of the
amount of hours requested by Plaintiff’s counsel.
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