MEMORANDUM OPINION
COLLEEN KOLLAR-KOTELLY UNITED STATES DISTRICT JUDGE
This
case was referred to Magistrate Judge G. Michael Harvey for
consideration of Plaintiff Andre Brooks' [23] Motion for
Attorney's Fees and preparation of a Report and
Recommendation pursuant to Local Civil Rule 72.3(a).
See Order Referring Case to a Magistrate Judge, ECF
No. 26. Plaintiff requested reimbursement of fees in the
amount of $14, 958.08, which was later amended to $14,
140.89. After briefing on the fee motion was completed,
Magistrate Judge Harvey held a hearing on the motion,
followed by his order for additional briefing on certain
issues relating to Plaintiff's counsel having been an
Administrative Law Judge (“ALJ”) prior to her
representation of Plaintiff in this matter. In his [41]
Report and Recommendation, Magistrate Judge Harvey
recommended an award of fees in the reduced amount of $7,
639.52, on grounds that because Plaintiff's attorney was
a former ALJ who “participat[ed] as an
adjudicator” in Plaintiff's administrative
proceedings before the Social Security Administration,
“to avoid the appearance of impropriety, fees accrued
by her from the date on which she became aware that she had
presided over part of Plaintiff's administrative case
should not be recovered.” Report and Recommendation,
ECF No. 41, at 2. Plaintiff Andre Brooks
(“Plaintiff' or “Mr. Brooks”) filed his
[42] Objections to the Report and Recommendation, and those
Objections are currently pending before this Court. Upon
consideration of the pleadings, [2] relevant legal authorities,
and the record in this case, the Court DENIES Plaintiff's
objections and ADOPTS the Magistrate Judge's Report and
Recommendation IN FULL, with the effect that Plaintiff's
Motion for Attorney's Fees is GRANTED IN PART AND DENIED
IN PA RT.
I.
Procedural Background
Plaintiff
Andre Brooks filed a Complaint in this Court pursuant to 42
U.S.C. §405(g), claiming his entitlement to Social
Security disability benefits after being denied benefits at
the administrative level. The case was referred by the
undersigned to a Magistrate Judge for full case management.
See Order, ECF No. 3. After the Administrative
Record was filed, Plaintiff filed a motion for judgment of
reversal and Defendant Social Security Administration
(“Defendant” or “SSA”) moved for a
judgment of affirmance. Magistrate Judge Deborah A. Robinson
issued a [26] Report and Recommendation recommending that the
reversal be granted in part and the affirmance be denied and
further, that the case be remanded to the SSA for further
proceedings consistent with her Report and Recommendation.
Neither party objected to that Report and Recommendation,
which was subsequently adopted in full by this Court.
See Order, ECF No. 21; Mem. Op., ECF No. 22. This
Court vacated the Commissioner's determination of
equivalence at Step Three and remanded the matter back to the
SSA for further proceedings on the applicability of
Plaintiff's impairments under the appropriate listing.
Plaintiff filed a subsequent motion for fees which was
referred for resolution to Magistrate Judge Harvey.
See Order, ECF No. 26.
Initially,
Defendant challenged Plaintiff's Motion for Fees on
grounds that the number of hours requested by Plaintiff was
too high, and the total amount claimed was much higher than
“the average EAJA [Equal Access to Justice Act] fee
award in Social Security disability cases [, ]” which
is around $3, 000-$4, 000. Def.'s Opp'n to Pl.'s
Mot. for Fees, ECF No. 24, at 2. In her Reply, Plaintiff
explained that the hours billed in this case resulted from
the “size and complexity of the factual record”
and from the “appalling number of legal errors [that]
had to be addressed.” Pl.'s Amendment and Reply,
ECF No. 25, at 9 (emphasis omitted). Plaintiff argued that
because her attorney's contemporaneous time records were
entitled to deference and there should be no de
facto cap on fees, Plaintiff was entitled to
reimbursement of all fees incurred. Id. at 3-7.
The
issue at the crux of this Memorandum Opinion - Ms.
Benagh's involvement in Plaintiff's case while she
was an ALJ handling claims for social security benefits- was
not raised in the initial round of briefing by the parties
but was instead raised by Defendant in her supplement to her
opposition. Defendant explained that “[a]lthough
counsel for the Commissioner noted Ms. Benagh's
involvement in the case as an ALJ in his brief (Dkt No. 17),
he was unaware of the implications until recently when he
attended ethics training, ” which prompted him to
follow up by contacting his EAJA coordinator and the
agency's representative sanctions coordinator. Def.'s
Supp. to Opp'n, ECF No. 28, at 4. Defendant argued that,
pursuant to 28 U.S.C. § 2412(d)(1)(A), “special
circumstances” made any award of fees unjust because
Plaintiff's counsel Christin Benagh violated the
“lifetime representational restriction” set forth
in 18 U.S.C. §207(a)(1), which is a conflict of interest
statute. See Def.'s Supp. to Opp'n, ECF No.
28, at 1-2. Defendant elaborated that the administrative
record in this case confirms that Ms. Benagh was acting as an
ALJ when she held a brief hearing regarding Plaintiff's
claims. Id. at 3; see Admin. Record, ECF
No. 10 (containing a 14-page transcript of the November 15,
2012 oral hearing). While Ms. Benagh did not resolve any part
of Plaintiff's claim, she did order a consultative
physical examination before continuing the hearing. That
second hearing was convened before a different ALJ, and Ms.
Benagh had no further involvement in Plaintiff's case
until she entered an appearance as counsel for Plaintiff
about a week after he filed his pro se action in
this case to appeal his denial of Social Security benefits.
See Complaint, ECF No. 1; Notice of Appearance, ECF
No. 5.
Responding
to Defendant's Supplement, Plaintiff asserted that fees
may not be denied because: (1) the fees belong to Plaintiff
who was the prevailing party; (2) Defendant has no authority
to enforce 18 U.S.C. Section 207; (3) Defendant's
allegations should have been brought under the ABA Model
Rules; (4) Defendant has not shown that, while she was an
ALJ, Plaintiff's counsel “substantially”
participated in Plaintiff's case insofar as she
“made no decision, made no findings of fact, made no
determination with respect to any level of the sequential
evaluation process, made no recommendations, and had no
contact” regarding Plaintiff's claim afterwards;
and (5) Defendant has not shown that Plaintiff's counsel
had knowledge of her involvement in Plaintiff's case
until such time as she was reviewing Defendant's motion
for affirmance, and after she was on notice, counsel
consulted a colleague to determine if it was an ethical
violation to represent the Plaintiff in this matter and was
told it was not. See generally Pl.'s Reply in
Opp'n to Def.'s Supp., ECF No. 30. Magistrate Judge
Harvey held a hearing on the fee motion, and subsequent to
the hearing, he instructed the parties to provide
supplemental briefing regarding the issue of Ms. Benagh's
previous involvement, namely: (1) whether Defendant waived
her objections to Ms. Benagh's conduct; (2) whether Mr.
Benagh possessed knowledge under 18 U.S.C. Section 207(a)(1);
and (3) whether Ms. Benagh was personally and substantially
involved in Plaintiff's administrative hearing. See
generally Pl.'s Supp. Br., ECF No. 34; Def.'s
Supp. Br., ECF No. 36; Pl.'s Reply to Def.'s Supp.
Br., ECF No. 39; and Def, 's Resp. to Pl.'s Reply,
ECF No. 40.
In his
Report and Recommendation, the Magistrate Judge found that
Ms. Benagh's representation of Plaintiff was a conflict
of interest, which constituted special circumstances making
an award of attorney's fees unjust. The Magistrate Judge
found no waiver by the Defendant of her objection to Ms.
Benagh's representation of Plaintiff, and he concluded
that “even if there [was] no clear violation of an
ethical rule or statute, Ms. Benagh's conduct [was]
sufficiently troubling to damage the ‘integrity of the
judicial and administrative process.'” Report and
Recommendation, ECF No. 41, at 19. According l y, he
concluded that this constituted “special
circumstances” under EAJA, which weighed into the
determination of legal fees, with the effect that Plaintiff
should not recover fees incurred on and after Ms. Benagh
became aware of the conflict.
Plaintiff
timely objected to the Magistrate Judge's finding that
“special circumstances” justified the reduction
of the fee award, and Plaintiff's objections will be
discussed in detail in Part III of this Memorandum Opinion.
Defendant did not initially respond to the Plaintiff's
objections until ordered by this Court to provide her
position on Plaintiff's objections. In her response to
Plaintiff's objections, Defendant indicated that
“the Commissioner accepts Magistrate Judge Harvey's
award, ” his “finding that additional fees are
unwarranted, ” and his explanation that attorney
misconduct “may constitute a special circumstance
sufficient to reduce or deny a request for EAJA
attorney's fees.” Def.'s Resp. to Pl.'s
Objections, ECF No. 45, at 1-2.
In
reply, Plaintiff noted that Defendant has seemingly abandoned
the claim that Ms. Benagh's representation violated 18
U.S.C. Section 207(a)(1) or D.C. Rules 1.11 and 1.12, and
further, that the Magistrate Judge failed to mention that the
Justice Department declined prosecution of Ms. Benagh, and
the D.C. Bar permitted the representation, and accordingly,
these determinations should have “precluded” the
Magistrate Judge from finding a conflict of interest.
Pl.'s Reply to Def.'s Resp., ECF No. 46, at 2-3.
II.
Legal Standard
Under
Federal Rule of Civil Procedure 72(b)(2) and Local Civil Rule
72.3 (b), once a Magistrate Judge has entered his recommended
disposition, a party may file specific written objections.
The district court must review de novo any motion for
attorney's fees referred to a Magistrate Judge, where a
party proffers an objection to the Report and Recommendation.
See Baylor v Mitchell Rubenstein & Assocs.,
P.C., 857 F.3d 939, 947 (D.C. Cir. 2017); see
also Local Civil Rule 72.3(c) (“A district judge
shall make a de novo determination of those portions of a
magistrate judge's findings and recommendations to which
objection is made. . .”) The district court may
“accept, reject, or modify the recommended
disposition.” Fed.R.Civ.P. 72(b)(3), Local Civil Rule
72.3(c).
III.
Analysis
Under
the EAJA, a court may award a plaintiff reasonable
attorney's fees and expenses if he: (1) is the prevailing
party; (2) has incurred fees or expenses; (3) the position of
the United States in the action was not substantially
justified; and (4) no special circumstances make an award of
fees unjust. See 28 U.S.C. §§ 2412 (b),
(d)(1)(A). While a plaintiff is entitled to a fee award if
the above requirements are met, district courts are generally
accorded “substantial discretion in fixing the amount
of an EAJA award” and charged with ensuring that the
final award is reasonable based on the evidence submitted.
Commissioner, INS v. Jean, 496 U.S. 154, 163 (1990);
see also Okla. Aerotronics, Inc. v. United States,
943 F.2d 1344, 1347 (D.C. Cir. 1991) (“[T]he
determination of how much to trim from a claim for fees is
committed to the [district] court's discretion.”);
see generally Porter v. Astrue, 999 F.Supp.2d 35, 38
(D.D.C. 2013) (in anal y z i n g a n E A J A fee claim, the
district court resolves the following issues, which involve
some measure of discretion: (1) whether a cost-of-living
adjustment is warranted; (2) the appropriate Consumer Price
Index (“CPI”) to use; (3) the correct
cost-of-living measure; (4) the baseline for the CPI
measurement; (5) the number of hours that ware reasonable;
and (6) the costs involved.)
In the
instant case, the Magistrate Judge's Report and
Recommendation acknowledged that Plaintiff was the prevailing
party who incurred fees and further noted that
“Defendant ma[de] no argument that her position was
substantially justified [.]” Report and Recommendation,
ECF No. 41, at 5-6. As previously noted, the Magistrate Judge
did find however that there were “special
circumstances” that justified a reduction in the amount
of fees.
Plaintiff
proffered five objections to the Magistrate Judge's
findings in the Report and Recommendation: (1) the Magistrate
Judge ignored the D.C. Bar Rules; (2) the Magistrate Judge
has not established that there was any appearance of
impropriety; (3) the Magistrate Judge erroneously relied on
so-called attorney misconduct to reduce fees, but found no
misconduct on the part of Ms. Benagh; (4) the Magistrate
Judge's analysis ignored all misconduct by the Defendant
is this proceeding; and (5) in the event that a portion of
the reasonable fee cannot be paid to Ms. Benagh, Mr. Brooks
asserts his ownership to the unpaid portion. See
Pl.'s Objections, ECF No. 42. In his [46] Reply to the
Defendant's Response to his Objections, Plaintiff
paraphrased his five objections as follows: (1) Ms. Benagh
was cleared of charges that she violated conflict of interest
statutes and ethical rules; (2) Ms. Benagh's
representation was permitted by D.C. Bar Ethics Opinion No.
315; (3) the Magistrate Judge improperly found that Ms.
Benagh's prior participation had been substantial and she
was guilty of a conflict of interest; (4) the Magistrate
Judge failed ...