Peterson v. Colvin
Court Docket Sheet

District of Alaska

3:2014-cv-00084 (akd)

MOTION for Leave to Appear as Pro Hac Vice (Non-Resident) Attorney Howard D. Olinsky. (Pro Hac Vice Admission fee $150.00 paid. Receipt number 097--2321923.) by Lorraine Dee Peterson.

UNITED STATES DISTRICT COURT DISTRICT OF ALASKA LORRAINE DEE PETERSON Case No. 3:14-cv-00084-RRB Plaintiff(s), MOTION AND APPLICATION OF vs. NON-ELIGIBLE ATTORNEY FOR NANCY A. BERRYHILL, PERMISSION TO APPEAR AND Acting Commissioner of Social Security PARTICIPATE IN THE UNITED STATES DISTRICT COURT Defendant(s). FOR THE DISTRICT OF ALASKA To the Honorable Judge of the above-entitled court: I, Howard D. Olinsky, hereby apply for permission to appear and (name) participate as counsel for Lorraine Dee Peterson, plaintiff, (Name of party) (plaintiff/defendant) in the above-entitled cause pursuant to Rule 83.1 (d) of the Local Rules for the United States District Court, District of Alaska. I hereby apply for permission to appear and participate as counsel WITHOUT ASSOCIATION of local counsel because [check whichever of the following boxes apply, if any]: I am a registered participant in the CM/ECF System for the District of Alaska and consent to service by electronic means through the court's CM/ECF System. I have concurrently herewith submitted an application to the Clerk of the Court for registration as a participant in the CM/ECF System for the District of Alaska and consent to service by electronic means through the court's CM/ECF System. For the reasons set forth in the attached memorandum. Case 3:14-cv-00084-RRB Document 32 Filed 04/25/17 Page 1 of 4 OR I hereby designate, a member of the Bar of this court, (Name) who maintains an office at the place within the district, with whom the court and opposing counsel may readily communicate regarding conduct of this case. DATE: (Signature) Howard D. Olinsky (Printed Name) (Address) (City/State/Zip) (Telephone Number) (e-mail address) Consent of Local Counsel* I hereby consent to the granting of the foregoing application. DATE: (Signature) (Printed Name) (Address) (City, State, Zip) (Telephone) (*Member of the Bar of the United States District Court for the District of Alaska) Case 3:14-cv-00084-RRB Document 32 Filed 04/25/17 Page 2 of 4 DECLARATION OF NON-ELIGIBLE ATTORNEY Full Name: Howard D. Olinsky Business Address: 300 S. South Street, Ste. 420, Syracuse, NY 13202 (Mailing/Street) (City, State, ZIP) Residence: 4435 Swissvale Drive, Manlius, NY 13104 (Mailing/Street) (City, State, ZIP) Business Telephone: 315-701-5780 e-mail address: holinsky@windisability.com Other Names/Aliases: N/A Jurisdictions to Which Admitted and year of Admission: See attached sheet (Jurisdiction) (Address) (Year) (Jurisdiction) (Address) (Year) (Jurisdiction) (Address) (Year) (Jurisdiction) (Address) (Year) Are you the subject of any pending disciplinary proceeding in any jurisdiction to which admitted? Yes No (If Yes, provide details on a separate attached sheet) Have you ever been suspended from practice or disbarred in any jurisdiction to which admitted? Yes No (If Yes, provide details on a separate attached sheet) In accordance with D.AK. LR 83.1(d)(4)[A](vi), I certify I have read the District of Alaska local rules by visiting the court's website at http://www.akd.uscourts.gov and understand that the practices and procedures of this court may differ from the practices and procedures in the courts to which I am regularly admitted. A Certificate of Good Standing from a jurisdiction to which I have been admitted is attached. Pursuant to 28 U.S.C. §1746, I hereby declare under penalty of perjury that the foregoing information is true, correct, and accurate. Dated: April 25, 2017 s/Howard D. Olinsky (Signature of Applicant) Case 3:14-cv-00084-RRB Document 32 Filed 04/25/17 Page 3 of 4 Attachment to Pro Hac Vice Application for Howard D. Olinsky: Court Date of Admission In Good Standing? New York State 02/07/1986 YES State of Georgia 01/23/2014 YES United States Supreme Court 04/01/1991 YES Court of Appeals for 2nd Circuit 11/01/2002 YES Court of Appeals for 6th Circuit 10/15/2013 YES Court of Appeals for Federal Circuit 06/12/2007 YES U.S. Court of Veteran’s Appeals, Washington D.C. 06/12/2007 YES U.S.D.C., NDNY 04/22/1986 YES U.S.D.C., WDNY 01/29/2001 YES U.S.D.C., EDNY 03/21/2003 YES U.S.D.C., SDNY 03/25/2003 YES U.S.D.C., DCT 12/10/2010 YES U.S.D.C., NDFL 10/31/2011 YES U.S.D.C., EDMI 02/25/2013 YES U.S.D.C., WDMI 12/26/2013 YES U.S.D.C., EDTX 12/20/2013 YES U.S.D.C., EDAR 01/03/2014 YES U.S.D.C., WDAR 01/03/2014 YES U.S.D.C., MDGA 01/28/2014 YES U.S.D.C., NDIL 01/30/2014 YES U.S.D.C., NDGA 02/10/2014 YES U.S.D.C., EDWI 04/14/2014 YES U.S.D.C., NDTX 05/15/2014 YES U.S.D.C., DCO 06/18/2014 YES U.S.D.C., SDGA 06/02/2014 YES U.S.D.C., WDWI 07/03/2014 YES U.S.D.C., WDTX 09/15/2014 YES U.S.D.C., NDIN 08/04/2015 YES U.S.D.C., CDIL 09/24/2015 YES U.S.D.C., SDIL 09/25/2015 YES U.S.D.C., EDMO 04/13/2017 YES Case 3:14-cv-00084-RRB Document 32 Filed 04/25/17 Page 4 of 4

Certificate of Good Standing

AO 136 (Rev. 10/13) Certificate of Good Standing UNITED STATES DISTRICT COURT for the Northern District of New York CERTIFICATE OF GOOD STANDING I, Lawrence K. Baerman, Clerk of this Court, certify that HOWARD D. OLINSKY, Bar # 102297, was duly admitted to practice in this Court on April 22, 1986, and is in good standing as a member of the Bar of this Court. Dated at Syracuse, New York on April 20, 2017 (Location) (Date) Lawrence K. Baerman CLERK DEPUTY CLERK Case 3:14-cv-00084-RRB Document 32-1 Filed 04/25/17 Page 1 of 1

ORDER of USCA as to [21] Notice of Appeal, filed by Lorraine Dee Peterson. Pursuant to EAJA, 28 U.S.C. � 2412(d), attorneys fees and expenses in the amount of $19,241.37 are awarded in favor of Lorraine Dee Peterson and against Nancy A. Berryhill, Acting Commissioner of Social Security Administration. This order amends the courts mandate.

Case: 15-35419, 06/16/2017, ID: 10476893, DktEntry: 47, Page 1 of 7 FILED UNITED STATES COURT OF APPEALS JUN 16 2017 MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT U.S. COURT OF APPEALS LORRAINE DEE PETERSON, No. 15-35419 Plaintiff-Appellant, D.C. No. 3:14-cv-00084-RRB District of Alaska, Anchorage v. NANCY A. BERRYHILL, Acting ORDER Commissioner of Social Security Administration,* Defendant-Appellee. Before: Peter L. Shaw, Appellate Commissioner. I Background An Administrative Law Judge ("ALJ") denied appellant Lorraine Dee Peterson’s application for disability insurance benefits and supplemental security income benefits. The district court denied Peterson’s appeal of the ALJ’s decision, holding that substantial evidence supported the ALJ’s conclusion that Peterson was capable of working. Peterson appealed, and a panel of this court reversed and * Nancy A. Berryhill is substituted as Acting Commissioner. See Fed. R. App. P. 43(c)(2). gml/Appellate Commissioner 15-35419 Case 3:14-cv-00084-RRB Document 34 Filed 06/16/17 Page 1 of 7 Case: 15-35419, 06/16/2017, ID: 10476893, DktEntry: 47, Page 2 of 7 remanded to appellee Acting Commissioner of Social Security Administration ("the Commissioner") for payment of benefits. Peterson filed a motion and supplemental motion for attorneys’ fees under the Equal Access to Justice Act, 28 U.S.C. § 2412 ("EAJA"), which the Commissioner opposed. The panel granted the motion and referred the matter to the Appellate Commissioner for a determination of an appropriate amount of fees. See 9th Cir. R. 39-1.9. II Analysis Courts determine a reasonable attorneys’ fees amount under EAJA by multiplying the number of hours reasonably expended on the litigation by a reasonable hourly rate. See Costa v. Comm’r of Soc. Sec. Admin., 690 F.3d 1132, 1135 (9th Cir. 2012). Peterson claims attorneys’ fees in the amount of $17,005.44 for the work of her attorneys, Paul B. Eaglin, Esq., and Edward Wicklund, Esq., and their paralegals. Peterson also requests reimbursement for $1,565.66 in expenses. The attorneys’ fees are for 27 hours of her attorneys’ work and 5 hours of their paralegals’ work before the district court, and for 62.85 hours of her attorneys’ work and 7.1 hours of their paralegals’ work in the court of appeals. Peterson has gml/Appellate Commissioner 2 15-35419 Case 3:14-cv-00084-RRB Document 34 Filed 06/16/17 Page 2 of 7 Case: 15-35419, 06/16/2017, ID: 10476893, DktEntry: 47, Page 3 of 7 miscalculated the amount of fees she claims for the work of attorneys Eaglin and Wicklund. The corrected calculation, according to the documentation attached to the fee motion and reply, is $17,660.70, based on 25.5 hours of work in 2014 at the EAJA statutory hourly rate of $190.06 ($4,846.53); 39.9 hours of work in 2015 at the hourly rate of $190.28 ($7,592.17); 11.90 hours of work in 2016 at $191.71 ($2,281.35); 7.1 hours of work in 2016 for travel to and from oral argument at a reduced hourly rate of $95.85 ($680.54); 5.45 hours of work in 2017 at the hourly rate of $192.68 ($1,050.11); and 12.1 hours of work for paralegal support at the hourly rate of $100 ($1,210.00). Peterson has discharged the fee applicant’s burden of presenting evidence in support of the claimed hours and of the claimed hourly rates. Gates v. Deukmejian, 987 F.2d 1392, 1397 (9th Cir. 1993). The Commissioner has the burden of presenting specific evidence supporting the fee opposition. See id. at 1397-98 ("The party opposing the fee application has the burden of rebuttal that requires submission of evidence" to the court challenging the accuracy and reasonableness of the hours charged or the facts asserted in the fee applicant’s affidavits.); United States v. $28,000 in U.S. Currency, 802 F.3d 1100, 1105 (9th Cir. 2015) (fee request is presumably reasonable if fee application is supported by sufficient evidence and opponent fails to present countervailing evidence or supporting argument). gml/Appellate Commissioner 3 15-35419 Case 3:14-cv-00084-RRB Document 34 Filed 06/16/17 Page 3 of 7 Case: 15-35419, 06/16/2017, ID: 10476893, DktEntry: 47, Page 4 of 7 The Commissioner asserts that the fee request is unreasonable and should be reduced by 30 percent because the time expended by Peterson’s two attorneys on the opening brief, 22.6 hours, is excessive given the lack of original work contained in the brief.1 The Commissioner states that the statement of facts in the opening brief is largely identical to the same section in the district court brief, and the "Arguments" sections of the appellate and district court briefs have identical language and organization. This contention lacks merit. The Commissioner is correct that sections of the opening brief are similar or substantially the same as portions of other filings submitted by Peterson’s attorneys in the district court. Peterson concedes that the two briefs are similar, but also notes that the two briefs were drafted more than a year apart, and that counsel reviewed the facts, evidence, and legal citations and statements in the district court brief to draft an updated and accurate appellate brief that conformed to Ninth Circuit rules and standards. A review of the briefs in this appeal and the district court confirms that the opening brief was reworked, updated with current law and facts, and edited to address the issues, facts, and law in this appeal and the underlying litigation. 1 Peterson had requested 29.8 hours to prepare the opening brief in her fee motion, but in her reply to the fee opposition she stated that 7.2 hours should not have been included in the time claimed for preparing the brief. gml/Appellate Commissioner 4 15-35419 Case 3:14-cv-00084-RRB Document 34 Filed 06/16/17 Page 4 of 7 Case: 15-35419, 06/16/2017, ID: 10476893, DktEntry: 47, Page 5 of 7 The duplication of effort Peterson’s attorneys performed was necessary because, in extended and ongoing litigation such as this, the law changes and previous research may be outdated. See Moreno v. City of Sacramento, 534 F.3d 1106, 1112 (9th Cir. 2008). Peterson has also satisfactorily explained the effort expended on stylistic changes and the factual sections of the brief. Moreover, "‘[l]awyers are not likely to spend unnecessary time on contingency fee cases in the hopes of inflating their fees,’ because'[t]he payoff is too uncertain.’" Costa, 690 F.3d at 1136 (quoting Moreno, 534 F.3d at 1112). "[C]ourts should generally defer to the'winning lawyer’s professional judgment as to how much time he was required to spend on the case.’ " Id. The Commissioner invites the court to compare the time Peterson’s attorneys spent preparing the brief, and the case as a whole, with attorney fee awards in other cases for briefing and the entire case. This court has questioned the usefulness of reviewing the number of hours expended in other cases to determine the reasonableness of an attorney’s time spent in a particular case before the court. See id. Social security cases are often highly fact-intensive, requiring review of administrative records involving complex medical evidence, as was the case in this litigation, making comparison of attorney hours spent in other litigation problematic. See id. at 1134 n.1, 1136. The Commissioner’s argument that the gml/Appellate Commissioner 5 15-35419 Case 3:14-cv-00084-RRB Document 34 Filed 06/16/17 Page 5 of 7 Case: 15-35419, 06/16/2017, ID: 10476893, DktEntry: 47, Page 6 of 7 court should not award more in this litigation than has been awarded in other similar cases is also inaccurate, because the fees requested here are within the range of awards in the cases the Commissioner cites in support of its proposition. A review of the fee motion and attached time entries, the briefing, and the record shows that Peterson’s requested time for preparing the opening brief is reasonable and is awarded. Peterson requests a fee award based on cost-of-living-adjusted EAJA statutory maximum hourly rates of $190.06 for 2014, $190.28 for 2015, and $191.70 for 2016, and $192.68 for 2017. See Thangaraja v. Gonzales, 428 F.3d 870, 876-77 (9th Cir. 2005). The government does not object to the requested hourly rates. The hourly rates are awarded, but the hourly rate for 2016 is $192.68. See Statutory Maximum Rates Under EAJA, http://www.ca9.uscourts.gov/content/view.php?pk_id=0000000039. Accordingly, Peterson is awarded attorney’s fees in the amount of $16,465.71. The government does not challenge the $1,210.00 in fees requested for paralegal support or the $1,565.66 in claimed expenses. A review of the fee materials and the record shows that those requests are reasonable and are awarded. gml/Appellate Commissioner 6 15-35419 Case 3:14-cv-00084-RRB Document 34 Filed 06/16/17 Page 6 of 7 Case: 15-35419, 06/16/2017, ID: 10476893, DktEntry: 47, Page 7 of 7 III Conclusion Pursuant to EAJA, 28 U.S.C. § 2412(d), attorneys’ fees and expenses in the amount of $19,241.37 are awarded in favor of Lorraine Dee Peterson and against Nancy A. Berryhill, Acting Commissioner of Social Security Administration. Peterson has assigned her entitlement to EAJA fees to her attorneys and she requests payment of the award to her attorneys. Accordingly, within 60 days after the date of this order, if the government determines that appellant does not owe a federal debt subject to offset and waives the requirements of the Anti-Assignment Act, 31 U.S.C. § 3727, the government shall pay the fee award, minus any applicable offset, directly to counsels Eaglin or Wicklund. See United States v. Kim, 806 F.3d 1161, 1169-70 (9th Cir. 2015); Mathews-Sheets v. Astrue, 653 F.3d 560, 565-66 (7th Cir. 2011); Yesipovich v. Colvin, 2015 WL 5675869, at *8 (N.D. Cal. Sept. 28, 2015); Cowart v. Comm’r of Soc. Sec., 795 F. Supp. 2d 667, 671-72 (E.D. Mich. 2011). This order amends the court’s mandate. gml/Appellate Commissioner 7 15-35419 Case 3:14-cv-00084-RRB Document 34 Filed 06/16/17 Page 7 of 7

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Description
1
05/07/2014
COMPLAINT against Carolyn W. Colvin, filed by Lorraine Dee Peterson.
1
Exhibit
1 Attachment
2
05/07/2014
Civil Cover Sheet.
3
05/07/2014
MOTION for Leave to Proceed in forma pauperis by Lorraine Dee Peterson.
4
05/07/2014
Unissued summons re Defendant Colvin
1
Unissued Summons re Defendant U.S. Attorney
2
Unissued Summons re Defendant U.S. Attorney General
2 Attachments
5
05/08/2014
ORDER DIRECTING SERVICE AND RESPONSE: Motion for Leave to Proceed in forma pauperis, at docket 3, is hereby GRANTED. Plaintiff has 120 days to complete service, Clerk of Court to issue summons, Defendant has 60 days to file an Answer or otherwise respond. Signed by Judge Ralph R. Beistline on 5/8/14.
05/08/2014
Summons Issued as to Carolyn W. Colvin, U.S. Attorney and U.S. Attorney General (Text entry; no document attached.)
6
05/20/2014
NOTICE of Appearance by Gary M. Guarino on behalf of Carolyn W. Colvin
7
05/28/2014
SUMMONS Returned Executed by Lorraine Dee Peterson. Carolyn W. Colvin served on 5/21/2014, answer due 7/21/2014.
8
06/17/2014
NOTICE of Appearance by Terrye Erin Shea on behalf of Carolyn W. Colvin
9
07/11/2014
SOCIAL SECURITY SCHEDULING ORDER: admin rec due w/i 60 days of i/a by def; plf's opening brf due w/i 30 days after filing of agency rec; def's answering brf due w/i 30 days of svc of plf's opening brf; reply may be fld w/i 14 days after svc of def's brf. Signed by Judge Ralph R. Beistline on 7/10/14.
07/11/2014
Docket Annotation: For the purpose of tracking the briefing as ordered at docket, when filing the Opening Brief the attorney shall file the document using the event Motion Miscellaneous Relief and text in the relief being sought. Responsive filings should be filed using the event Response in Opposition to Motion or Response to Motion (Non-Opposition). The reply, if any, shall be filed using the event Reply to Response to Motion. (Text entry; no document attached.)
10
07/18/2014
ANSWER to 1 Complaint by Carolyn W. Colvin.
11
07/18/2014
Notice of Lodging Administrative Record
1
Certification Page
2
Court Transcript Index
3
Documents Related to Administrative Process Including Transcript of Oral Hearing, if applicable
4
Payment Documents and Decisions
5
Jurisdictional Documents and Notices
6
Non Disability Related Development
7
Disability Related Development
8
Medical Records Part 1
9
Medical Records Part 2
10
Medical Records Part 3
11
Medical Records Part 4
11 Attachments
07/21/2014
Administrative Record consisting of 1 volume received on 7/21/14. Administrative Record is available conventionally for review in the Clerk's office. (Text entry; no document attached.)
12
08/18/2014
MOTION remand Brief on the Merits by Lorraine Dee Peterson.
13
09/09/2014
NOTICE of Substitution of Counsel by Carolyn W. Colvin
14
09/17/2014
RESPONSE in Opposition re 12 MOTION remand Brief on the Merits filed by Carolyn W. Colvin.
15
10/01/2014
REPLY to Response to Motion re 12 MOTION remand Brief on the Merits filed by Lorraine Dee Peterson.
16
12/12/2014
JUDGE BEISTLINE TEXT ORDER: Defendant, Carolyn W. Colvin, shall file, on or before January 6, 2015, a response to Petitioner's Reply Memorandum at Docket 15 and specifically address Ghanim V. Colvin, No. 12-35804, 2014 U.S. App. Lexis 15867 (9th Cir. Aug. 18, 2014) and its applicability to the current dispute. It is so Ordered.
17
12/17/2014
NOTICE of Substitution of Counsel by Carolyn W. Colvin
18
01/06/2015
RESPONSE TO ORDER Defendant's Supplemental Brief by Carolyn W. Colvin. Modified on 1/13/2015 to link to dkt 12
19
05/15/2015
ORDER Denying Appeal at Docket 12. (Jan, Chambers Staff)
20
05/18/2015
JUDGMENT: The Court upholds the decision of the ALJ and DENIES Plaintiff's claim for relief. Signed by Judge Ralph R. Beistline on 5/18/15.
21
05/27/2015
NOTICE OF APPEAL as to 20 Judgment, 19 Order on Motion for Miscellaneous Relief by Lorraine Dee Peterson. Filing fee $ 505.
1
Supplement Appeal Representation Statement
2
Supplement Judgment in Soc Sec appeal
3
Supplement Order in Soc Sec appeal
3 Attachments
22
05/29/2015
USCA Case Number 15-35419 for 21 Notice of Appeal, filed by Lorraine Dee Peterson.
1
USCA Mediation Letter
2
USCA Mediation Questionnaire
3
USCA Case Opening Packet
3 Attachments
23
06/02/2015
NOTICE of Appearance by Franco Luciano Becia on behalf of Carolyn W. Colvin
24
08/18/2016
USCA ORDER as to 21 Notice of Appeal, filed by Lorraine Dee Peterson. The request of appellant's counsel, dated August 10, 2016, to add Edward A. Wicklund as co-counsel of record for the appellant Loraine D. Peterson is GRANTED.
25
08/19/2016
USCA ORDER as to 21 Notice of Appeal, filed by Lorraine Dee Peterson. REVERSED AND REMANDED. FILED AND ENTERED JUDGMENT.
1
USCA Post Judgment Form
1 Attachment
26
10/12/2016
USCA MANDATE as to 21 Notice of Appeal, filed by Lorraine Dee Peterson.
27
10/13/2016
ORDER REMANDING FOR BENEFITS. (CC: DQA) (Jan, Chambers Staff)
28
10/25/2016
JUDGMENT : This matter is remanded to the Commissioner for payment of benefits. Signed by Judge Ralph R. Beistline on 10/24/16.
29
11/21/2016
USCA ORDER as to 21 Notice of Appeal, filed by Lorraine Dee Peterson. Appellant's motion for attorney's fees pursuant to the Equal Access to Justice Act, see 28 U.S.C.
30
12/09/2016
USCA ORDER as to 21 Notice of Appeal, filed by Lorraine Dee Peterson. The court granted appellant Lorraine Dee Peterson's motion for attorneys' fees and referred to the Appellate Commissioner the determination of an appropriate amount of fees and costs. The question of an appropriate amount of fees is referred to the Circuit Mediator, who will contact the parties. The Circuit Mediator is requested to inform the Appellate Commissioner of the conclusion of the mediation.
31
02/16/2017
CLERK'S NOTICE returning Administrative Record to Counsel for Carolyn W. Colvin.
32
04/25/2017
MOTION for Leave to Appear as Pro Hac Vice (Non-Resident) Attorney Howard D. Olinsky. (Pro Hac Vice Admission fee $150.00 paid. Receipt number 097--2321923.) by Lorraine Dee Peterson.
1
Certificate of Good Standing
1 Attachment
33
05/09/2017
CLERK'S NOTICE re 32 Application to Appear Pro Hac Vice. The Application to Appear Pro Hac Vice by Howard D. Olinsky, at docket 32, is authorized under D.Ak. LR 83.1(d).
34
06/16/2017
ORDER of USCA as to [21] Notice of Appeal, filed by Lorraine Dee Peterson. Pursuant to EAJA, 28 U.S.C. � 2412(d), attorneys fees and expenses in the amount of $19,241.37 are awarded in favor of Lorraine Dee Peterson and against Nancy A. Berryhill, Acting Commissioner of Social Security Administration. This order amends the courts mandate.
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