Michelle De Ann Cox v. Carolyn W. Colvin

Filing 30

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)

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

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).

9

ANALYSIS
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