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Brooks v. Berryhill

United States District Court, District of Columbia

January 7, 2019

NANCY A. BERRYHILL, [1] Acting Commissioner of Social Security, Defendant



         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 ...

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