Nguyen v. Astrue

Filing 15

ORDER Granting 14 Motion to Expedite; and Order Granting in Part 8 Plaintiff's Motion for Attorney's Fees and Costs. Plaintiff's motion to expedite is granted with the issuance of this order. The Court grants in part Nguyen's motion for attorney's fees. The Court awards a total of $4,063.31 for combined attorney's fees and costs. Signed by Judge Larry Alan Burns on 7/14/2017. (lrf)

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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 SOUTHERN DISTRICT OF CALIFORNIA 7 8 9 NHU NGOC NGUYEN, Case No.: 10-CV-2349-LAB-MDD Plaintiff, 10 11 v. 12 ORDER GRANTING MOTION TO EXPEDITE; AND NANCY BERRYHILL, Acting Commissioner of the Social Security Administration,1 13 14 ORDER GRANTING IN PART PLAINTIFF’S MOTION FOR ATTORNEY’S FEES AND COSTS Defendant. 15 16 17 Introduction 18 This order was prepared in draft some time ago. But because of an 19 administrative error, it was inadvertently not signed and docketed. The Court 20 appreciates the parties' patience in this matter. Plaintiff’s motion to expedite 21 (Docket no. 14) is GRANTED with the issuance of this order. 22 On a joint motion from the parties, the Court entered final judgment against 23 the Commissioner of Social Security, reversing the denial of Nhu Ngoc Nguyen’s 24 /// 25 /// 26 27 1 28 Pursuant to Fed. R. Civ. P. 25(d), Nancy Berryhill, Acting Commissioner of the Social Security Administration, is substituted as Defendant. 1 10-CV-2349-LAB-MDD 1 disability claim. Nguyen now moves for $3,713.312 in attorney’s fees and $550 in 2 expenses under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. 3 § 2412(d)(1)(A). The Commissioner concedes the reasonableness of awarding 4 Nguyen the $125 per hour statutory maximum, adjusted for inflation to $175.06, 3 5 for each hour reasonably billed on the case. (Dkt. No. 9-1 at 7:15.) However, she 6 opposes Nguyen’s request for a $50 per hour fees enhancement, and argues that 7 only five of Nguyen’s requested 16.5 hours were reasonably necessary to litigate 8 the case. Additionally, the Commissioner argues that $200 of the costs requested 9 were incurred for non-compensable activities. Upon review of the record and 10 pleadings, the Court finds that a $50 per hour fees enhancement is appropriate 11 here and that the hours requested were reasonable, and awards Nguyen 12 $3,713.31 in attorney’s fees and $350 in costs. 13 Discussion 14 Fees Enhancement 15 EAJA grants reasonable attorney's fees in cases against an official of the 16 United States acting in her official capacity. It caps the hourly rate at $125, 17 adjusted for inflation to $175.06, “unless the court determines that . . . a special 18 factor, such as limited availability of qualified attorneys for the proceedings 19 involved, justifies a higher fee.” A “special factor” enhancement requires “some 20 distinctive knowledge or specialized skill needful for the litigation in question.” 21 Pierce v. Underwood, 487 U.S. 552, 572 (1988). The Ninth Circuit identified “three 22 requirements [that] must be satisfied before the court can exceed the statutory 23 limit. First, the attorney must possess distinctive knowledge and skills developed 24 25 26 27 28 2 In this order, the calculated figures are rounded to the nearest cent, resulting in the difference of a few cents between Nguyen’s fee request of $3713.31 and the slightly higher figure that could be obtained by multiplying the rounded numbers. The Court will use Nguyen’s figures. 3 The Commissioner does not dispute that the $125 hourly rate is properly adjusted for inflation to $175.06. 2 10-CV-2349-LAB-MDD 1 through a practice specialty. Secondly, those distinctive skills must be needed in 2 the litigation. Lastly, those skills must not be available elsewhere at the statutory 3 rate.” Love v. Reilly, 924 F.2d 1492, 1496 (9th Cir. 1991) (internal citations 4 omitted). The burden is on Nguyen to show that she is entitled to the fees she 5 seeks. See Blum v. Stenson, 465 U.S. 886, 896 n.11 (1984); Harris v. Maricopa 6 Cty. Sup. Ct., 631 F.3d 963, 971 (9th Cir. 2011). 7 Nguyen argues she is entitled to a $50 per hour fees enhancement because 8 her attorney, Alexandra Tran Manbeck, specializes in social security law and 9 refugee issues, and speaks fluent Vietnamese. (Dkt. No. 8-2 at 4:24–25.) There 10 is no dispute that Manbeck’s fluency in Vietnamese is the type of specialty 11 contemplated by the Supreme Court. See Pierce, 487 U.S. at 572; Le v. Apfel, 12 99cv1929 (IEG) (Dkt. No. 26 at 6). 13 Manbeck’s ability to speak Vietnamese was not necessary to this case other than 14 in actual communications between the attorney and client, (Dkt. No. 9-1 at 6:26), 15 and that Nguyen has not shown that suitable counsel was unavailable at the 16 statutory maximum rate. (Dkt. No. 9-1 at 6:10–11 and 26.) Instead, the Commissioner argues that 17 Vietnamese Fluency as a Necessary Specialized Skill 18 Knowledge of a foreign language is a specialized skill warranting fees 19 enhancement under § 2412(d)(1)(A), “where such qualifications are necessary.” 20 Pierce, 487 U.S. at 572. “Effective communication between attorney and client is 21 a fundamental requirement of the adversarial system.” Phan v. Astrue, 07cv862 22 (AJB) (Dkt. No. 29 at 3:25–26). “It is axiomatic that communicating directly with 23 one’s client is a critical component of effective representation.” Le Vo v. Apfel, 24 98cv2090 (TJW) (Dkt. No. 25 at 9:11–13). But the court looks to the facts of each 25 case to determine what communication actually occurred. 26 02cv2326 (Dkt. No. 39 at 6:14–15). Phu v. Barnhart, 27 While some cases require frequent and ongoing communication between the 28 lawyer and client, here Manbeck conferred with Nguyen for two hours: first to 3 10-CV-2349-LAB-MDD 1 review and discuss evidence, then to discuss the defendant’s offer to remand. The 2 assistance of someone fluent in Vietnamese was certainly needed during those 3 two hours. But the bulk of the work in this case required Manbeck to review English 4 language records, interview witnesses in English, and conduct English language 5 legal research on U.S. federal law. (Dkt. No. 8-1 at 3.) None of those activities, nor 6 the nine hours billed preparing and defending her request for attorney’s fees, 7 knowledge of Vietnamese. 8 One way to look at this situation is that the need was not so much for an 9 attorney who was fluent in Vietnamese as it was for the services of an attorney, 10 and of a Vietnamese interpreter. An attorney not fluent in Vietnamese could have 11 litigated this case as competently using an interpreter, and included the 12 interpreter's compensation as part of the costs. See 28 U.S.C. §1920(6) (providing 13 that compensation of interpreters is taxable as costs). Manbeck saved costs by 14 not hiring an interpreter. The enhancement she is requesting is the same amount 15 that would be reasonable for an interpreter. For this reason, the Court finds that 16 the assistance of someone fluent in Vietnamese was necessary to litigation for the 17 two hours Manbeck was communicating with Nguyen. 4 That person could have 18 been an interpreter, but in this case it was Manbeck herself. 19 If fluency in Vietnamese were the only basis on which Manbeck was seeking 20 an enhancement, the Court would award that enhancement for two hours only. But 21 as discussed below, there are other reasons a fee enhancement is appropriate. 22 The Court therefore treats Manbeck’s Vietnamese fluency as providing modest 23 support for the requested enhancement. 24 /// 25 /// 26 27 28 4 General Order No. 527-A, signed August 03, 2011, increased the allowable interpreter fees from $45 to $50 per hour. Thus, Nguyen’s requested $50 fees enhancement is reasonable. 4 10-CV-2349-LAB-MDD 1 Manbeck’s Expertise in Social Security and Refugee Issues 2 Nguyen relies on Pirus v. Bowen, 869 F.2d 536 (9th Cir. 1989) to argue she 3 is entitled to a fee enhancement based on Manbeck’s expertise in social security 4 law. (Dkt. No. 8-2 at 4:24-5:3.) However, Pirus was “no routine disability case[.]” 5 Pirus, 869 F.2d at 542. Although the court in Pirus approved an enhancement in 6 the hourly rate for an attorney who specialized in social security cases, that case 7 involved a class action lawsuit within “a highly complex area of the Social Security 8 Act.” Id. Nothing in Pirus suggests that social security cases are always a matter 9 of specialization for purposes of the EAJA. 5 See also Pierce, 487 U.S. at 572 10 (holding that an "extraordinary level of the general lawyerly knowledge and ability 11 useful in all litigation" did not merit a fee enhancement). 12 By contrast, Nguyen’s appeal of the denial of Social Security benefits was 13 relatively straightforward. See Costa v. Comm'r of Soc. Sec. Admin., 690 F.3d 14 1132 (9th Cir. 2012). Nguyen’s appeal challenged the Commissioner’s decision 15 based on her failure to consider and appropriately weigh the medical evidence and 16 opinions provided by two medical doctors, and failure to consider the cumulative 17 impact of physical and psychological impairments evidenced in their reports. 18 (Compl. ¶¶ 13–29.) Likewise, the factual basis of the case was not uniquely 19 complex. Nguyen sought benefits due to arthritis, leg pain, and post-traumatic 20 stress syndrome. (Compl. ¶¶ 7–8.) Furthermore, the few hours spent litigating 21 this case support the conclusion that this was not an especially complex social 22 security case. (Dkt. No. 8-1 at 3.) 23 It is important to bear in mind that social security cases always require some 24 expertise in Social Security law. The base rate takes into account the degree of 25 26 5 27 28 The Seventh, Eighth, and Tenth Circuits have explicitly rejected the notion that Social Security cases are always a matter of specialization for purposes of the EAJA, finding no conflict with Pirus. Raines v. Shalala, 44 F.3d 1355, 1361 (7th Cir. 1995); Stockton v. Shalala, 36 F.3d 49, 50 (8th Cir.1994); Chynoweth v. Sullivan, 920 F.2d 648, 650 (10th Cir.1990). 5 10-CV-2349-LAB-MDD 1 expertise required to litigate a Social Security appeal. If enhancements were 2 routinely awarded, the base rate would almost never be used, and would be 3 virtually meaningless. 4 But Manbeck’s experience with refugees—specifically her knowledge of 5 legal issues relating to traumatized persons—was needed to litigate this case. 6 Nguyen’s appeal relied, at least in part, on the Commissioner’s “failure to consider 7 the cumulative impact of [Nguyen’s] multiple physical and mental impairments[,]” 8 in violation of the Commissioner’s implementing regulations. (Compl. ¶ 20.) 9 Manbeck based this cause of action on Dr. James Grisolia’s diagnosis and 10 treatment of Nguyen for post-traumatic stress syndrome and associated refractory 11 headaches, major depression, and mental impairments. 12 Litigating issues related to psychological impairment suffered after a traumatic 13 experience requires specialization in issues arising in such situations. The Court 14 therefore finds that all hours reasonably billed in this case required Manbeck’s 15 special knowledge of legal issues relating to refugees. (Compl. ¶¶ 7–8.) 16 Qualified Counsel Unavailable at the Statutory Rate 17 Nguyen sufficiently established that qualified counsel was not available to 18 litigate this case at the statutory maximum hourly rate. See Nadarajah v. Holder, 19 569 F.3d 906, 915 (9th Cir. 2009). An attorney’s own declaration may satisfactorily 20 demonstrate “that no suitable counsel would have taken on claimant’s case at the 21 statutory rate[.]” Id. No declaration from the client is required. In this case, the 22 declaration needed to say, “with at least modest support,” that Nguyen would be 23 unable to find a legal expert in refugee issues for $125 per hour. 6 Id. 24 Manbeck declares under penalty of perjury, “I am entitled to an enhancement 25 of $50 per hour for specialization in Social Security and refugee issues, and for the 26 27 28 6 This rate would be adjusted upward to $175.06 to account for inflation. See supra n.2 and accompanying text. 6 10-CV-2349-LAB-MDD 1 fact that there is no attorney available to take on these types of cases involving 2 Vietnamese refugees applying for SSI benefits in Southern California.” (Dkt. No. 3 8-1 at 4.) The Court finds that this statement, while broad, suffices to meet the 4 standard of “modest support.” Nadarajah, 569 F.3d at 915. Nguyen’s pleadings 5 provide additional support for the Court’s interpretation of Manbeck’s sworn 6 statement. The motion for attorney’s fees reads,“[n]ot only does plaintiff’s attorney 7 have Vietnamese language skills which allow her to communicate directly with her 8 clients, and other considerable experience in litigating Social Security cases for 9 Vietnamese refugees, there is no other lawyer in the San Diego area who has the 10 necessary skills or experience who would take the case for $125 an hour.” (Dkt. 11 No. 8-2 at 7:2–6.) 12 The Court finds Manbeck sufficiently established the unavailability of 13 qualified counsel at the statutory maximum rate. Therefore, the Court also finds 14 that all hours she reasonably billed qualify for the requested $50 per hour fees 15 enhancement, a total rate of $225.06 per hour (2010 inflation adjusted rate of 16 $175.06 + fees enhancement of $50). 17 Hours Reasonably Expended 18 Manbeck claims she spent 16.5 hours over the course of six months litigating 19 this routine disability case. It appears that the work she completed was consistent 20 with the number of hours billed. 7 Manbeck had to review files and prepare a 21 complaint, negotiate the remand of the case, and prepare her request for attorney’s 22 fees under EAJA. The Commissioner challenges the reasonableness of hours 23 billed for each of these actions and argues that only five hours were reasonably 24 expended in this case. 25 26 7 27 28 This total includes 13.5 hours requested in her initial petition, along with an additional three hours spent composing Nguyen’s fees request reply. (See Dkt. No. 11 at 1.) The Court presumes that the Commissioner would challenge these three additional hours as unreasonable for the purposes of deciding this motion. 7 10-CV-2349-LAB-MDD 1 First, the Commissioner argues that 5.5 hours spent reviewing records and 2 preparing the complaint was unreasonable. She alleges that Nguyen’s complaint 3 was unnecessarily lengthy, (Dkt. No. 9-1 at 3:23), and that Manbeck should have 4 been familiar with the record because she represented Nguyen during the 5 administrative process. 6 reasonably necessary work accomplished in a reasonable number of hours. (Dkt. 7 No. 8-1 at 3.) The fact that the Commissioner ultimately moved to remand the 8 case “does not make it unreasonable for Ms. Manbeck to have spent time on 9 [multiple] issues[.]” Phan v. Astrue, 07cv862 (JLS) (Dkt. No. 8-3, 6:22–23). On 10 the contrary, it was the strength of the complaint that convinced the Commissioner, 11 “prior to any briefing . . . that the administrative law judge’s decision could not be 12 defended[,]” and that it “required remand.” (Dkt. No. 9-1, 3:2–4.) Additionally, 13 regardless of whether Manbeck represented Nguyen during administrative 14 proceedings, an appeal in a federal court reasonably required Manbeck to 15 research distinct legal issues, review evidence, and confirm witness testimony. 16 The Court finds reasonable the 5.5 hours expended prior to the complaint’s filing. 17 Second, the Commissioner argues that two hours billed negotiating remand 18 was unreasonable because Manbeck merely “received and read the motion and 19 added one sentence.” (Dkt. No. 9-1 at 4:3.) The Court disagrees. Both parties 20 agree that the Commissioner’s counsel unilaterally prepared a motion for remand 21 and sent it to Manbeck. (Dkt. No. 9-1 at 4:1-5.) Manbeck reviewed the motion and 22 “added one sentence,” which the Commissioner’s attorney altered, and which 23 Manbeck again altered “to the satisfaction of both parties.” Id. The fact that 24 Manbeck added and then changed only one sentence does not mean that the 25 remainder of the pleading did not require her careful attention. 26 Manbeck says her client was ill and “needed lengthy explanations to convince her 27 of the need to accept the government’s offer to settle.” (Dkt. No. 10 at 6.) Under 28 these circumstances, two hours was reasonable. Manbeck’s itemized activity descriptions indicate Additionally, 8 10-CV-2349-LAB-MDD 1 Third, the Commissioner challenges the nine hours spent on a motion and 2 reply brief for attorney’s fees. She does not deny that time spent on a fees 3 application is compensable, see Clark v. City of Los Angeles, 803 F.2d 987, 992 4 (9th Cir. 1986), but she points out that Manbeck’s motion is substantially similar to 5 several Manbeck has used in the past and questions the six hours “allegedly spent 6 drafting and preparing Plaintiff’s EAJA application.” (Dkt. No. 9-1 at 4:15.) She 7 made the same argument in Phan v. Astrue, another benefits denial appeal 8 decided against the Commissioner in this District. In that case the court explained, 9 even if some of the EAJA motion did not need to be drafted anew, it was not unreasonable for counsel to invest five hours to ensure that the motion completely set forth Plaintiff’s case for EAJA fees. When using “boilerplate”, counsel must still customize the work to the specifics of the case at hand and conduct research to ensure the continuing validity of case law. 10 11 12 13 14 Phan v. Astrue, 07cv862 (JLS) (Dkt. No. 29 at 7:10-14). In this case, Nguyen 15 argues convincingly that preparing the motion for attorney’s fees without using 16 prior pleadings would reasonably have taken longer than six hours. (Dkt. No. 10 17 at 9.) The Court finds it was reasonable for Manbeck to expend six hours to 18 prepare the motion, using an exemplar. 19 Manbeck spent an additional three hours drafting the EAJA reply brief. Given 20 her need to carefully review the Commissioner’s ten-page opposition, research the 21 cases cited therein, and draft her nine-page reply, the Court finds the additional 22 three hours was reasonable. Therefore, the Court finds all of the hours requested 23 by Nguyen to be reasonably necessary to the litigation of this case and awards 24 Nguyen $3,713.31 (16.5 hours times the enhanced rate) in attorney’s fees. 25 C. Costs 26 In addition to attorney’s fees, EAJA provides for “a judgment for costs, as 27 enumerated in section 1920 of this title[.]” Section 1920 sets forth the following 28 taxable court costs: 9 10-CV-2349-LAB-MDD 1) Fees of the clerk and marshal; (2) Fees for printed or electronically recorded transcripts necessarily obtained for use in the case; (3) Fees and disbursements for printing and witnesses; (4) Fees for exemplification and the costs of making copies of any materials where the copies are necessarily obtained for use in the case; (5) Docket fees under section 1923 of this title; (6) Compensation of court appointed experts, compensation of interpreters, and salaries, fees, expenses, and costs of special interpretation services under section 1828 of this title. 1 2 3 4 5 6 7 8 28 U.S.C. § 1920. An applicant for reimbursement of expenses bears the burden 9 to produce evidence that permits the court to determine what expenses were 10 incurred in the litigation, and why they were incurred. See Loranger v. Stierheim, 11 10 F.3d 776, 784 (11th Cir.1994). An attorney’s own sworn affidavit provides the 12 necessary proof that costs were in fact incurred. United States v. Adkinson, 256 13 F. Supp. 2d 1297, 1320 (N.D. Fla. 2003) aff’d, 360 F.3d 1257 (11th Cir. 2004). 14 Manbeck states under penalty of perjury that she incurred $550 in costs while 15 litigating this case. She spent “$350 in filing fees with the district court, and filing 16 services of $100, and service of process of $100.” (Dkt. No. 8-1 at 4.) As set forth 17 in § 1920, a plaintiff’s cost of service is not expressly taxed by EAJA. Likewise, 18 cost of service is not an element of attorney’s fees. Chen v. Slattery, 842 F. Supp. 19 597, 600 (D. D.C. 1994). Because this Court lacks power to shift expenses that 20 fall into neither category, see W. Virginia Univ. Hospitals, Inc. v. Casey, 499 U.S. 21 83, 86 (1991), plaintiff cannot recover the cost of service. Therefore, the Court 22 awards Nguyen $350 for the cost of filing fees with the district court, but not the 23 $200 she requests for service of process. 24 /// 25 /// 26 /// 27 /// 28 /// 10 10-CV-2349-LAB-MDD 1 Conclusion 2 For these reasons, the Court GRANTS in part Nguyen’s motion for attorney’s 3 fees. The Court AWARDS a total of $4,063.31 for combined attorney’s fees and 4 costs. 5 IT IS SO ORDERED. 6 7 Dated: July 14, 2017 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11 10-CV-2349-LAB-MDD

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