Doan v. Colvin

Filing 46

ORDER granting Plaintiff's 42 Motion for Attorney Fees and Costs. Court awards Plaintiff attorney fees in the amount of $23,642.76, as well as costs in the amount of $100.00. Subject to offsets allowed under the Treasury Offset Program, payment is to be made directly to Plaintiff's attorney. Signed by Judge Cynthia Bashant on 6/7/2018. (jah)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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MINH TRIEU DOAN,
Plaintiff,

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Case No. 16-cv-00841-BAS-AGS
ORDER GRANTING
PLAINTIFF’S MOTION FOR
ATTORNEY FEES AND COSTS

v.
[ECF No. 42]

NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.

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Presently before the Court is Plaintiff Minh Trieu Doan’s request for attorney

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fees to be reimbursed by the Social Security Commissioner (“Commissioner”) under

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the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d), in the amount of

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$23,642.76, plus $100.00 in travel costs. (ECF No. 42, “Mot.”; ECF No. 44,

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“Reply.”) The Commissioner opposes, arguing first that the Social Security

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Administration’s (“Administration”) position was substantially justified, and second,

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that Plaintiff’s attorney fee request is unreasonable. (ECF No. 43, “Opp’n.”) For the

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reasons stated below, the Court GRANTS Plaintiff’s motion for attorney fees and

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costs.
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On July 19, 2010, Plaintiff commenced this action seeking review of the

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Administration’s denial of her application for Supplemental Security Income under

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Title XVI of the Social Security Act. At issue in this case was the August 21, 2010

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psychological report by Plaintiff’s doctor, Dr. Lessner, and related denied

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opportunity to cross examine the Administration’s witness, Dr. McDevitt. After the

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parties filed cross motions for summary judgment, U.S. Magistrate Judge Andrew G.

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Schopler issued a Report & Recommendation (“R&R”) recommending that this

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Court grant Plaintiff’s motion (ECF No. 16) and deny the Commissioner’s motion

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(ECF No. 22). (ECF No. 38.) The Commissioner then filed objections to the R&R,

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to which Plaintiff had replied. (ECF Nos. 39, 40.) On September 29, 2017, the Court

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adopted the R&R and remanded this action for further proceedings. (ECF No. 41.)

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I.

ANALYSIS

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The EAJA provides that “a court shall award to a prevailing party . . . fees and

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other expenses . . . incurred by that party in any civil action . . . brought by or against

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the United States . . . unless the court finds that the position of the United States was

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substantially justified or that special circumstances make an award unjust.” 28 U.S.C.

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§ 2412(d)(1)(A); see also Gisbrecht v. Barnhart, 535 U.S. 789, 796 (2002). Thus, to

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be eligible for attorney fees under the EAJA: (1) the claimant must be a “prevailing

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party”; (2) the government’s position must not have been “substantially justified”;

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and (3) no special circumstances can exist that make an award of attorney fees unjust.

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Comm’r, Immigration & Naturalization Serv. v. Jean, 496 U.S. 154, 158 (1990).

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The Commissioner opposes Plaintiff’s request for attorney fees. The

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Commission contends that the Administration’s position was substantially justified,

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and, if the Court finds otherwise, Plaintiff’s request is unreasonable and should not

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be awarded at the full amount requested. Based on the following reasons, the Court

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finds that the Commissioner’s position was not substantially justified and that the

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request for attorney fees is reasonable.
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The Administration’s Position Was Not Substantially Justified.

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A.

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Plaintiff argues that the Administration’s position was not substantially

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justified because the evidence did not substantially support its position. (Mot. at 4-

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5.) The Commissioner disputes this. (Opp’n at 4-5.) Instead, the Commissioner

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contends that the “agency properly developed the record and received confirmation

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from Dr. Lessner that he had no evidence to provide for Plaintiff’s claim, and Plaintiff

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did not meet her burden of submitting Dr. Lessner’s report to the agency.” (Id. at 4.)

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The Supreme Court has held that a position may be substantially justified “if

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it has a reasonable basis in law and fact.” Pierce v. Underwood, 487 U.S. 552, 566

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n.2 (1988). When determining whether the government’s position was substantially

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justified, the court considers “both the government’s litigation position and the

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underlying agency action giving rise to the civil action.” Meier v. Colvin, 727 F.3d

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867, 870 (9th Cir. 2013). The government’s position must be “as a whole,

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substantially justified.” Gutierrez v. Barnhart, 274 F.3d 1255, 1258–59 (9th Cir.

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2001) (emphasis omitted). It also “must be ‘substantially justified’ at ‘each stage of

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the proceedings.’” Corbin v. Apfel, 149 F.3d 1051, 1052 (9th Cir. 1998) (quoting

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Williams v. Bowen, 966 F.2d 1259, 1261 (9th Cir. 1991)).

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The “substantially justified” standard is significantly similar to the standard of

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review in Social Security cases—“substantial evidence.” Meier, 727 F.3d at 872.

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Given this similarity, the Ninth Circuit “and other circuits have held that a ‘holding

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that the agency’s decision . . . was unsupported by substantial evidence is . . . a strong

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indication that the ‘position of the United States’ . . . was not substantially justified.”

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Id. (quoting Thangaraja v. Gonzales, 428 F.3d 870, 874 (9th Cir. 2005)); see also

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Thangaraja, 428 F.3d at 874 (“Indeed, it will be only a decidedly unusual case in

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which there is substantial justification under the EAJA even though the agency’s

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decision was reversed as lacking in reasonable, substantial and probative evidence in

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the record.” (internal quotations omitted)).

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First, Plaintiff is considered the prevailing party by virtue of this Court’s order

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granting Plaintiff’s motion for summary judgment and remanding this action for

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further proceedings. (ECF No. 41); see Afanador v. Sullivan, 809 F. Supp. 61, 64

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(N.D. Cal. 1992) (finding that the Court’s remand order “resulted in plaintiff attaining

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the status of ‘prevailing party,’ as defined by the EAJA”).

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Second, the Commissioner does not meet her burden to show that the

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Administration’s position was substantially justified. In its prior order, the Court

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found that the Dr. Lessner’s report should have been a part of Plaintiff’s application,

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but that the government misplaced the report in between Plaintiff’s two eligibility

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hearings. (ECF No. 41 at 11-14.) Additionally, the Court found that the

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Administrative Law Judge (“AJL”) should have accepted the Dr. Lessner’s report at

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Plaintiff’s hearing or at least allowed it to be added to Plaintiff’s application

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following the hearing. (Id. at 18.) More importantly, related to this missing report,

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the AJL impermissibly cut off Plaintiff’s counsel from cross examining the

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Administration’s witness Dr. McDevitt—who was testifying to deny Plaintiff’s

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disability claim—about the report. (Id. at 14.) The Court ultimately agreed with

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Magistrate Judge Schopler’s finding that the ALJ committed reversible error in

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denying Plaintiff a meaningful opportunity to cross examine this adverse witness.

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(Id. at 17/); see also Solis v. Schweiker, 719 F.2d 301, 301-02 (9th Cir. 1983) (finding

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abuse of discretion when denying a claimant the opportunity to cross-examine a

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medical expert “where the physician is a crucial witness whose findings substantially

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contradict the other medical testimony”). Lastly, the Court found that the

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Administration’s effort to develop a complete record was inadequate. See Webb v.

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Barnhart, 433 F.3d 683, 687 (9th Cir. 2005) (“[T]he ALJ has a special duty to fully

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and fairly develop the record and to assure that the claimant’s interests are

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considered.” (quoting Brown v. Heckler, 713 F.2d 441, 443 (9th Cir. 1983))); Sims v.

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Apfel, 530 U.S. 103, 111 (2000) (Thomas, J.) (joined by three justices) (“It is the

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ALJ’s duty to investigate the facts and develop the arguments both for and against

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granting benefits.”).

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Third, the Commissioner does not argue or otherwise demonstrate that this

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action “is [a] decidedly unusual case in which there is substantial justification under

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the EAJA even though the agency’s decision was reversed.” See Al-Harbi, 284 F.3d

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at 1085. This case does not involve any special circumstances that would make an

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award of attorney fees and costs unjust, nor does the Commissioner assert that such

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circumstances exist. Instead, she merely asserts that if this Court determines Plaintiff

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is entitled to attorney fees, they should be reduced. (Opp’n at 6.)

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Therefore, all three requirements for an award under the EAJA are satisfied.

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Accordingly, this Court finds that Plaintiff is eligible for attorney fees and costs under

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the EAJA.

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Plaintiff’s Request for Fees and Costs is Reasonable.

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B.

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The Court must now determine whether the fees and costs requested by

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Plaintiff are reasonable. “[T]he fee applicant bears the burden of establishing

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entitlement to an award and documenting the appropriate hours expended.” Hensley

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v. Eckerhart, 461 U.S. 424, 437 (1983). “[T]he most useful starting point for

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determining the amount of a reasonable fee is the number of hours reasonably

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expended on the litigation multiplied by a reasonable hourly rate.” Id. at 433.

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Generally, the court should defer to the winning lawyer’s professional

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judgment as to how much time was required for the case. See Costa v. Comm’r of

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Social Sec. Admin., 690 F.3d 1132, 1135 (9th Cir. 2012); Moreno v. City of

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Sacramento, 534 F.3d 1106, 1112 (9th Cir. 2008) (“[A]fter all he [or she] won, and

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might not have, had he [or she] been more of a slacker.”). Although surveying hourly

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rates awarded to attorneys of comparable experience and skill can be a useful tool,

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“it is far less useful for assessing how much time an attorney can reasonably spend

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on a specific case because that determination will always depend on case-specific
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factors including, among others, the complexity of the legal issues, the procedural

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history, the size of the record and when counsel was retained.” Costa, 690 F.3d at

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1136. If the government disputes the reasonableness of the fee, then it “has a burden

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of rebuttal that requires submission of evidence to the district court challenging the

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accuracy and reasonableness of the hours charged or the facts asserted by the

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prevailing party in its submitted affidavits.” Gates v. Deukmejian, 987 F.2d 1392,

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1397–98 (9th Cir. 1992).

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Plaintiff submits the Declaration of Alexandra T. Manbeck, which details her

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legal education and experience, including various specific cases involving social

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security benefits she has worked on. (ECF No. 42-2 (stating additionally that counsel

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has handled “over 1000” social security cases involving Vietnamese applicants).)

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Further, Manbeck’s declaration details the hours expended on the case (calculated to

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the half hour), date of the work, and description of the work completed. (Id. at 4-6.)

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She also requests a $50.00 per hour special factor enhancement above the statutory

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hourly rate1 to account for her expertise in social security matters and her ability to

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serve as a translator for Plaintiff, who speaks Vietnamese. (Opp’n at 10.) Manbeck

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states that she expended a total of 97.5 hours on this case and seeks to recover

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$23,642.76 in fees. (ECF No. 42-2 at 4-6; Reply at 10 (requesting an additional five

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hours for drafting reply brief).)

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The Commissioner contests that Plaintiff’s fee request is reasonable for two

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reasons. First, she argues that Plaintiff’s counsel is not entitled to a special factor

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enhancement of the statutory rate because Plaintiff’s counsel has not established her

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specialties were needed for this case. (Mot. at 6-10.) Second, the Commissioner

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For the Ninth Circuit, the applicable statutory maximum hourly rate under
the EAJA is $190.28 for 2016 and $195.95 for 2017. See Thangaraja v. Gonzales,
428 F.3d 870, 876–77 (9th Cir. 2005) (“[A]ppropriate cost-of-living increases are
calculated by multiplying the $125 statutory rate by the annual average consumer
price index figure for all urban consumers (‘CIP-U’) for the years in which counsel’s
work was performed, and then dividing by the CPI-U figure for March 1996, the
effective date of the EAJA’s $125 statutory rate.”). Plaintiff’s counsel worked on this
case beginning in April 2016 and continued her representation in 2017.
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disputes the number of hours that Plaintiff’s counsel claims to have expended on this

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case. The Court finds these arguments unconvincing.

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A “special factor” enhancement is available under the EAJA if “some

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distinctive knowledge or specialized skill [is needed] for the litigation in question.”

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Pierce, 487 U.S. at 572. Examples of these special factors include an “identifiable

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practice specialty” and a “knowledge of foreign law or language.” Id. “Where such

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qualifications are necessary and can be obtained only at rates in excess of the [$125]

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cap, reimbursement above that limit is allowed.” Id. Before approving the

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enhancement, a court must determine that (1) “the attorney . . . possess[es] distinctive

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knowledge and skills,” (2) “those distinctive skills [are] needed in the litigation,” and

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(3) “those skills [are not] available elsewhere at the statutory rate.” Love v. Reilly,

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924 F.2d 1492, 1496 (9th Cir. 1991) (citing Pirus v. Bowen, 869 F.2d 536, 541–42

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(9th Cir. 1989)). The plaintiff has the burden of proof to show that these three

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requirements exist. See Jawad v. Barnhart, 370 F. Supp. 2d 1077, 1089 (S.D. Cal.

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2005).

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Plaintiff meets her burden of showing that all three factors are present in this

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case. It is clear that Manbeck’s knowledge of social security law and fluency in the

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Vietnamese constitute “distinctive knowledge and skills.” Pirus, 869 F.2d at 541; see

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also Pierce, 487 U.S. at 572. Plaintiff also shows that these skills were needed for

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this litigation because, in part, Plaintiff is unable to communicate in English. See

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Love, 924 F.2d at 1496; (see Mot. at 12 (stating further that Plaintiff could not afford

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a Vietnamese translator and previously attempted unsuccessfully to apply for benefits

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in 2008)). The Court also finds that Plaintiff could not have received this specialized

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representation elsewhere at the statutory rate. See Love, 924 F.2d at 1496; (see ECF

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No. 42-2 ¶ 10.)

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The Commissioner next argues that the amount of hours that Plaintiff’s counsel

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expended on this case is unreasonable. Instead, the Commissioner states that the

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amount of hours should be reduced by over forty hours to a total of 50.5 hours.
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(Opp’n at 14.) The Commissioner contends that this amount is “generous and

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appropriate compensation despite the excessive and unreasonable hours requested.”

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(Opp’n at 12-13.) The Court disagrees, and finds Plaintiff’s request of 97.5 hours is

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reasonable.

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The Court agrees with Plaintiff that this case was complex and atypical and,

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despite counsel’s expertise in social security law, required additional legal research

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and writing. (See Reply at 6-8.) Additionally, this case involved two hearings—one

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telephonic and one in-person—as well as required a response to the Commissioner’s

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ten pages of objections to the R&R. (See id.) In a similar case relating to due process,

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which did not involve two hearings and responding to objections, the court found that

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expending sixty-seven hours on such a case was reasonable. See Order Granting

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Plaintiff’s Application for Attorney’s Fees at 10, Viet Duong v. SSA, 13-cv-2705-

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WQH(NLS) (S.D. Cal. Nov. 24, 2014) (involving Manbeck as counsel).

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After reviewing Plaintiff’s specific allocations of counsel’s hours in this case,

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the hours appear reasonable. This case involved reviewing a 307-page administrative

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record involving a missing doctor’s report and disrupted cross examination (8.0

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hours), researching and drafting a twenty-five page motion for summary judgment

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involving the issue of due process (37 hours), drafting and editing a ten-page reply

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to the Commissioner’s objections to the R&R (6.25 hours), and preparing for and

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attending two court hearings (1.75 hours and 4.0 hours), which all included

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consulting with Plaintiff for each action. (ECF No. 42-2 at 4-6); see Palomares v.

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Astrue, No. C-11-4515-EMC, 2012 WL 6599552, at *9 (N.D. Cal. Dec. 18, 2012)

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(explaining that the “9.5 hours for writing the three page Motion for Summary

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Judgment is reasonable given the 320 page administrative record, which counsel had

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to review in drafting his motion”); Order Granting Plaintiff’s Application for

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Attorney’s Fees at 10-11, Viet Duong v. SSA, 13-cv-2705 WQH(NLS) (finding

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similar time allocations were reasonable); Nayab v. Astrue, No. 07CV0733

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JM(WMC), 2008 WL 4748172, at *2 (S.D. Cal. Oct. 28, 2008) (awarding the plaintiff
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attorney fees for seventy-three hours of counsel’s work); cf. JGB Enters. v. United

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States, 83 Fed. Cl. 20, 34 (Fed. Cl. 2008) (rejecting defendant’s contention that

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plaintiff’s counsel did not specify what research was conducted and finding that

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plaintiff’s listed expenses “paired neatly with the [bill] describing the nature of the

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research”). Plaintiff also reasonably requests attorney fees for ten hours that her

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counsel prepared this instant motion for attorney fees, as well as an additional five

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hours for preparing the related reply. (See ECF No. 42-2 at 6; Reply at 10.)

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Additionally, the Court considers the results obtained, a “factor [that] is

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particularly crucial where a plaintiff is deemed ‘prevailing.’” Atkins v. Apfel, 154

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F.3d 986, 989–80 (9th Cir. 1998) (quoting Hensley, 461 U.S. at 434). Given

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Plaintiff’s success in obtaining a remand for further proceedings, this Court does not

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find that the hours expended to ensure that success are unreasonable. See Afanador,

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809 F. Supp. at 64.

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Accordingly, by failing to submit evidence to this Court “challenging the

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accuracy of the hours charged or the facts asserted by the prevailing party in its

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submitted affidavits,” the Commissioner does not meet her burden of rebuttal to

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Plaintiff’s motion. See Deukmejian, 987 F.2d at 1397–98. The Commissioner simply

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states that the number of hours submitted by Plaintiff is not justified. Consequently,

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as discussed above, this Court does not find that the hours claimed by Plaintiff are

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“excessive, redundant, or otherwise unnecessary.” See Hensley, 461 U.S. at 434.

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As for Plaintiff’s request for costs, the EAJA authorizes an award of not only

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attorneys’ fees, but also “other expenses.” 28 U.S.C. § 2412(d)(1)(A). Plaintiff seeks

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$100.00 in costs—$30.00 for her counsel’s travel to a court hearing and $70.00 paid

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to a translator to contact Plaintiff. (See Reply at 8; ECF No. 44-1.) This amount is

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reasonable and recoverable. See Int’l Woodworkers of Am. v. Donovan, 792 F.2d 762,

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767 (9th Cir. 1985) (stating the costs and expenses covered by this statutory

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allowance are those “that are ordinarily billed to a client”). Thus, the Court will grant

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Plaintiff’s request.
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II.

CONCLUSION

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In light of the foregoing, the Court finds Plaintiff, as the prevailing party, is

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entitled to attorney fees and costs in this case and that the requested fees and costs

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are reasonable. Therefore, the Court GRANTS Plaintiff’s Motion for Attorney Fees

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and Costs (ECF No. 42) and awards Plaintiff attorney fees in the amount of

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$23,642.76, as well costs in the amount of $100.00. Subject to offsets allowed under

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the Treasury Offset Program, payment is to be made directly to Plaintiff’s attorney.

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See Astrue v. Ratliff, 560 U.S. 586, 592–93 (2010).

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IT IS SO ORDERED.

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DATED: June 7, 2018

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