Peterson v. Colvin
Court Docket Sheet
District of Alaska3:2014-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: firstname.lastname@example.org 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. Â§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 Veteranâs 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  Notice of Appeal, filed by Lorraine Dee Peterson. Pursuant to EAJA, 28 U.S.C. ï¿½ 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 Petersonâs application for disability insurance benefits and supplemental security income benefits. The district court denied Petersonâs appeal of the ALJâs decision, holding that substantial evidence supported the ALJâs 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 attorneysâ fees under the Equal Access to Justice Act, 28 U.S.C. Â§ 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 attorneysâ fees amount under EAJA by multiplying the number of hours reasonably expended on the litigation by a reasonable hourly rate. See Costa v. Commâr of Soc. Sec. Admin., 690 F.3d 1132, 1135 (9th Cir. 2012). Peterson claims attorneysâ 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 attorneysâ fees are for 27 hours of her attorneysâ work and 5 hours of their paralegalsâ work before the district court, and for 62.85 hours of her attorneysâ work and 7.1 hours of their paralegalsâ 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 applicantâs 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 applicantâs 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 Petersonâs 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 Petersonâs 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 Petersonâs 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, "â[l]awyers are not likely to spend unnecessary time on contingency fee cases in the hopes of inflating their fees,â because'[t]he payoff is too uncertain.â" Costa, 690 F.3d at 1136 (quoting Moreno, 534 F.3d at 1112). "[C]ourts should generally defer to the'winning lawyerâs professional judgment as to how much time he was required to spend on the case.â " Id. The Commissioner invites the court to compare the time Petersonâs 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 attorneyâs 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 Commissionerâs 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 Petersonâs 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 attorneyâs 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. Â§ 2412(d), attorneysâ 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. Â§ 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. Commâr of Soc. Sec., 795 F. Supp. 2d 667, 671-72 (E.D. Mich. 2011). This order amends the courtâs 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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