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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 EASTERN DIVISION 11 RONALD WELCH, Plaintiff, 12 13 14 15 v. CAROLYN COLVIN, Acting Commissioner of Social Security, 16 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) Case No. ED CV 11-00740-DFM MEMORANDUM OPINION AND ORDER GRANTING PLANTIFF’S MOTION FOR EAJA ATTORNEY FEES 17 18 On February 4, 2014, Plaintiff Ronald Welch filed a motion for award of 19 attorney fees under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 20 2412. Because the Court finds that the Commissioner’s position was not 21 “substantially justified,” as discussed below, the Court grants Plaintiff’s motion 22 for EAJA fees. 23 I. 24 FACTUAL AND PROCEDURAL BACKGROUND 25 On March 29, 1999, Plaintiff applied for Social Security disability 26 insurance benefits. On February 27, 2002, the ALJ issued an unfavorable 27 decision. Plaintiff requested Appeals Council review. On July 15, 2003, the 28 Appeals Council remanded the case to the ALJ for further proceedings. On 1 August 28, 2003, the ALJ again denied benefits. Plaintiff had 60 days, or until October 27, 2003, to request that the 2 3 Appeals Council review the August 28, 2003 decision. 20 C.F.R. § 404.968. 4 An untimely request for review results in the Appeals Council dismissing the 5 request. 20 C.F.R. § 404.971. On September 25, 2003, Plaintiff’s counsel sent a 6 letter by fax to the Appeals Council requesting review. When Plaintiff’s 7 counsel had heard or received nothing in almost a year, Plaintiff’s counsel 8 faxed a status request to the Appeals Council on August 9, 2004. After learning 9 that the Appeals Council did not receive the request for review, Plaintiff’s 10 counsel provided the Appeals Council with a fax cover sheet dated September 11 25, 2003, a request for review dated September 25, 2003, and a fax 12 transmission log showing that a fax had been sent to the Appeals Council on 13 September 25, 2003. On January 13, 2006, the Appeals Council dismissed Plaintiff’s request 14 15 for review, finding that it was not filed within 60 days of the ALJ’s unfavorable 16 decision, as required by 20 C.F.R. 404.968(a). The denial states in pertinent 17 part: 18 The representative, Bill LaTour, faxed a request for review for the 19 claimant to the Appeals Council on March 29, 2005. The request 20 for review is dated September 25, 2003 and a cover sheet dated 21 September 25, 2003 is attached. There is also a “receipt” showing 22 a fax was sent to the Appeals Council on September 25. However, 23 the representative did not submit any clear proof that this 24 particular request for review was faxed to the Appeals Council in a 25 timely manner. 26 On February 23, 2009, Plaintiff faxed a request to reopen the August 27 2003 unfavorable decision, accompanied by a declaration by attorney Bill 28 LaTour, signed under penalty of perjury, authenticating the September 2003 2 1 request for review. On August 13, 2010, Plaintiff again requested that the 2 Appeals Council reopen the August 2003 unfavorable decision. On March 30, 3 2011, the Appeals Council denied review of the second application for benefits 4 and again denied Plaintiff’s request to reopen the 2003 decision.1 5 On May 16, 2011, Plaintiff appealed the denial of his request for review 6 to this Court. On February 29, 2012, United States Magistrate Judge Marc L. 7 Goldman dismissed Plaintiff’s complaint for lack of subject matter jurisdiction, 8 finding that Plaintiff’s factual assertion that he timely filed his request for 9 review with the Appeals Council did not set forth a colorable constitutional 10 claim. Dkt. 22. Judge Goldman’s decision was limited to the question of 11 whether Plaintiff had raised a colorable due process claim; because the Appeals 12 Council had given Plaintiff a “fair opportunity to be heard” on his claim that 13 he had submitted a timely request, Judge Goldman concluded that the Due 14 Process Clause was not implicated even though he indicated that the Appeals 15 Council’s decision was “certainly” subject to debate. Dkt. 22 at 6. Plaintiff appealed this Court’s dismissal to the Ninth Circuit Court of 16 17 Appeals. On October 17, 2013, the Ninth Circuit reversed: 18 Although the Council’s dismissal order is not a final 19 decision, the district court nonetheless had jurisdiction to review it 20 under 42 U.S.C § 405(g) because Welch asserted a colorable 21 constitutional claim. Califano v. Sanders, 430 U.S. 99, 109, 97 22 S.Ct. 980, 51 L.Ed.2d 192 (1977); Matlock v. Sullivan, 908 F.2d 23 492, 493–94 (9th Cir.1990). We recently held that due process 24 requires the Commissioner to give “some explanation” when 25 26 27 1 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. 28 3 1 dismissing an apparently valid request for a hearing. Dexter v. 2 Colvin, No. 12–35074, 731 F.3d 977, 980–81, 2013 WL 5434699, 3 at *3 (9th Cir. Sept. 30, 2013). Because Welch provided the 4 Council with evidence that, if credited, would establish that he 5 timely filed the request for review, due process requires the 6 Council to provide some explanation why it concluded to the 7 contrary. 8 We vacate the judgment of the district court and remand to 9 the district court to remand to the Commissioner to consider the 10 evidence that Welch timely filed his request for review and either 11 to explain her decision dismissing the request or to treat it as 12 timely. 13 Welch v. Colvin, 542 F. App’x 609, 609-10 (9th Cir. Oct. 17, 2013). The 14 Commissioner filed a petition for panel rehearing, which was summarily 15 denied on November 26, 2013. 16 On February 16, 2014, this case was randomly reassigned to the 17 undersigned U.S. Magistrate Judge due to the retirement of Judge Goldman. 18 II. 19 DISCUSSION 20 A. Plaintiff Is Entitled to Attorney Fees as the Prevailing Party Because 21 the Government’s Position Was Not Substantially Justified 22 The EAJA provides that a court shall award reasonable attorney fees, 23 court costs and other expenses to the prevailing party “unless the court finds 24 that the position of the United States was substantially justified or that special 25 circumstances make an award unjust.” 28 U.S.C. § 2412(d)(1)(A); accord 26 Pierce v. Underwood, 487 U.S. 552, 565 (1988); Lewis v. Barnhart, 281 F.3d 27 1081, 1083 (9th Cir. 2002). The term “‘position of the United States’ means, in 28 addition to the position taken by the United States in the civil action, the 4 1 action or failure to act by the agency upon which the civil action is based.” 28 2 U.S.C. § 2412(d)(2)(D). 3 A position is “substantially justified” if it has a “reasonable basis both in 4 law and fact.” Pierce, 487 U.S. at 565. “Substantially justified” means 5 “justified to a degree that could satisfy a reasonable person.” Id. More recently, 6 the Ninth Circuit has clarified that the government’s position is “substantially 7 justified” where supported by the record. Hardisty v. Astrue, 592 F.3d 1072, 8 1080 (9th Cir. 2010) (“The government’s adverse credibility finding was 9 substantially justified because all of the inferences upon which it rested had 10 substance in the record.”). The government has the burden of proving its 11 positions were substantially justified. Flores v. Shalala, 49 F.3d 562, 569-70 12 (9th Cir. 1995). However, the mere fact that a court reversed and remanded a 13 case for further proceedings “does not raise a presumption that [the 14 government’s] position was not substantially justified.” Kali v. Bowen, 854 15 F.2d 329, 334 (9th Cir. 1988.) 16 The Commissioner has not met her burden to show that her position – 17 and in particular the position which caused this civil action – was substantially 18 justified. As noted, the term “position of the United States” includes the action 19 or failure to act by the agency upon which the civil action is based. Here, the 20 Court cannot find that the Appeals Council’s determination that Plaintiff’s 21 faxed cover sheet, request for review, and dated fax transmittal log with the 22 Council’s fax number was not “clear proof” that Plaintiff had timely appealed 23 had a “reasonable basis . . . in fact.” If these documents, together with a 24 declaration from Plaintiff’s counsel, do not constitute “clear proof” that 25 Plaintiff’s counsel timely faxed a request for review to the Appeals Council, it 26 is unclear what documentation Plaintiff could have provided to demonstrate a 27 timely request. As noted by the Ninth Circuit, Plaintiff provided the Appeals 28 Council with sufficient “evidence that, if credited, would establish that he 5 1 timely filed the request for review.” Welch, 542 F. App’x at 609. The Appeals 2 Council’s arbitrary rejection of this evidence, without “some explanation” to 3 Plaintiff as to why it was “dismissing an apparently valid request for a 4 hearing,” id., did not have a reasonable basis in fact. Judge Goldman’s now-reversed decision that the Court lacked 5 6 jurisdiction because the Commissioner had given Plaintiff the fair opportunity 7 to be heard did not touch upon the underlying justification for the Appeals 8 Council’s decision to dismiss Plaintiff’s request for review; it is that decision 9 which is the “the action . . . by the agency upon which th[is] civil action is 10 based.” See 28 U.S.C. § 2412(d)(2)(D). Indeed, Judge Goldman’s decision 11 suggests the same doubts about the Appeals Council’s decision that this Court 12 now makes clear, as he expressly noted that the decision was “certainly” open 13 for debate. Accordingly, the Court finds that the government has filed to show that 14 15 its position was “substantially justified.” Plaintiff is entitled to an award of 16 attorney fees under the EAJA as the prevailing party. 17 B. 18 The Hours Claimed by Plaintiff Are Reasonable Plaintiff seeks an award in a total amount of $7,680.79, which consists of 19 the following: (1) $5,978.30 for attorney work on the case, representing 34.15 20 hours of attorney time at $175.06 per hour; (2) $1,146.25 for paralegal work on 21 the case which includes 3.75 hours of paralegal time at $135 per hour and 4 22 hours of senior paralegal time at $160 per hour; and (3) $551.19 for litigating 23 this fee motion, representing 3 hours of attorney time at $183.73 per hour. The 24 total number of hours for which Plaintiff is seeking attorney fees is 44.9 (37.15 25 attorney hours and 7.75 paralegal hours). 26 This Court has the discretion to evaluate the reasonableness of the 27 number of hours claimed by a prevailing party. Sorenson v. Mink, 239 F.3d 28 1140, 1145 (9th Cir. 2001); Gates v. Deukmejian, 987 F.2d 1392, 1398 (9th 6 1 Cir. 1992). The Court should exclude hours that were not reasonably 2 expended. Hensley v. Eckerhart, 461 U.S. 424, 434 (1992). In determining 3 reasonableness, the Court must consider, among other factors, the complexity 4 of the case or the novelty of the issues, the skill required to perform the service 5 adequately, the customary time expended in similar cases, as well as the 6 attorney’s expertise and experience. Kerr v. Screen Extras Guild, Inc., 526 7 F.2d 67, 69-70 (9th Cir. 1975); Widrig v. Apfel, 140 F.3d 1207, 1209 (9th Cir. 8 1998). In reducing a fee award, the Court must provide a reasonable 9 explanation of how it arrived at the number of compensable hours in 10 determining the appropriate fee. Sorenson, 239 F.3d at 1145; Hensley, 461 11 U.S. at 437. 12 The amount of time required to litigate any case can be highly variable 13 and is the subject of much debate. The Ninth Circuit recently clarified that “it 14 is [ ] an abuse of discretion to apply a de facto policy limiting social security 15 claimants to twenty to forty hours of attorney time in ‘routine’ cases.” Costa v. 16 Comm’r of Soc. Sec. Admin., 690 F.3d 1132, 1136 (9th Cir. 2012). Further, 17 the court questioned “the usefulness of reviewing the amount of time spent in 18 other cases to decide how much time an attorney could reasonably spend on 19 the particular case before the court.” Id. Rather, the inquiry into the 20 reasonableness of a fee request must be based on the facts of each case. 21 Hensley, 461 U.S. at 429. 22 The Court must generally give deference to the “winning lawyer’s 23 judgment as to how much time he was required to spend on the case,” 24 particularly in contingency fee cases, such as this one. Costa, 690 F.3d at 1136 25 (citing Moreno v. City of Sacramento, 534 F.3d 1106, 1112-13 (9th Cir. 2008) 26 (noting that “lawyers are not likely to spend unnecessary time on contingency 27 fee cases in the hope of inflating their fees” because “[t]he payoff is too 28 uncertain”). Here, after reviewing the time records counsel submitted and the 7 1 pleadings in this matter, the Court finds that the total requested time of 44.9 2 hours is reasonable. See, e.g., Russell v. Sullivan, 930 F.2d 1443, 1445 (9th 3 Cir. 1991) (approving 54.5 hours as reasonable for services rendered before 4 both the district court and the court of appeals in a social security case), 5 abrogated on other grounds by Sorenson, 239 F.3d at 1149.2 The hours 6 requested for each task, primarily in reviewing the record and drafting the 7 briefs, appear reasonable and supported by sufficiently detailed billing records. 8 III. 9 CONCLUSION 10 11 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. 12 13 Dated: April 21, 2014 ______________________________ DOUGLAS F. McCORMICK United States Magistrate Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 Defendant does not raise any challenge to the reasonableness of the amount of hours requested by Plaintiff’s counsel. 8

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