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Nguyen v. Berryhill

United States District Court, S.D. California

July 14, 2017

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




         This order was prepared in draft some time ago. But because of an administrative error, it was inadvertently not signed and docketed. The Court appreciates the parties' patience in this matter. Plaintiff's motion to expedite (Docket no. 14) is GRANTED with the issuance of this order.

         On a joint motion from the parties, the Court entered final judgment against the Commissioner of Social Security, reversing the denial of Nhu Ngoc Nguyen's disability claim. Nguyen now moves for $3, 713.31[2] in attorney's fees and $550 in expenses under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d)(1)(A). The Commissioner concedes the reasonableness of awarding Nguyen the $125 per hour statutory maximum, adjusted for inflation to $175.06, [3]for each hour reasonably billed on the case. (Dkt. No. 9-1 at 7:15.) However, she opposes Nguyen's request for a $50 per hour fees enhancement, and argues that only five of Nguyen's requested 16.5 hours were reasonably necessary to litigate the case. Additionally, the Commissioner argues that $200 of the costs requested were incurred for non-compensable activities. Upon review of the record and pleadings, the Court finds that a $50 per hour fees enhancement is appropriate here and that the hours requested were reasonable, and awards Nguyen $3, 713.31 in attorney's fees and $350 in costs.


         Fees Enhancement

         EAJA grants reasonable attorney's fees in cases against an official of the United States acting in her official capacity. It caps the hourly rate at $125, adjusted for inflation to $175.06, “unless the court determines that . . . a special factor, such as limited availability of qualified attorneys for the proceedings involved, justifies a higher fee.” A “special factor” enhancement requires “some distinctive knowledge or specialized skill needful for the litigation in question.” Pierce v. Underwood, 487 U.S. 552, 572 (1988). The Ninth Circuit identified “three requirements [that] must be satisfied before the court can exceed the statutory limit. First, the attorney must possess distinctive knowledge and skills developed through a practice specialty. Secondly, those distinctive skills must be needed in the litigation. Lastly, those skills must not be available elsewhere at the statutory rate.” Love v. Reilly, 924 F.2d 1492, 1496 (9th Cir. 1991) (internal citations omitted). The burden is on Nguyen to show that she is entitled to the fees she seeks. See Blum v. Stenson, 465 U.S. 886, 896 n.11 (1984); Harris v. Maricopa Cty. Sup. Ct., 631 F.3d 963, 971 (9th Cir. 2011).

         Nguyen argues she is entitled to a $50 per hour fees enhancement because her attorney, Alexandra Tran Manbeck, specializes in social security law and refugee issues, and speaks fluent Vietnamese. (Dkt. No. 8-2 at 4:24-25.) There is no dispute that Manbeck's fluency in Vietnamese is the type of specialty contemplated by the Supreme Court. See Pierce, 487 U.S. at 572; Le v. Apfel, 99cv1929 (IEG) (Dkt. No. 26 at 6). Instead, the Commissioner argues that Manbeck's ability to speak Vietnamese was not necessary to this case other than in actual communications between the attorney and client, (Dkt. No. 9-1 at 6:26), and that Nguyen has not shown that suitable counsel was unavailable at the statutory maximum rate. (Dkt. No. 9-1 at 6:10-11 and 26.)

         Vietnamese Fluency as a Necessary Specialized Skill

         Knowledge of a foreign language is a specialized skill warranting fees enhancement under § 2412(d)(1)(A), “where such qualifications are necessary.” Pierce, 487 U.S. at 572. “Effective communication between attorney and client is a fundamental requirement of the adversarial system.” Phan v. Astrue, 07cv862 (AJB) (Dkt. No. 29 at 3:25-26). “It is axiomatic that communicating directly with one's client is a critical component of effective representation.” Le Vo v. Apfel, 98cv2090 (TJW) (Dkt. No. 25 at 9:11-13). But the court looks to the facts of each case to determine what communication actually occurred. Phu v. Barnhart, 02cv2326 (Dkt. No. 39 at 6:14-15).

         While some cases require frequent and ongoing communication between the lawyer and client, here Manbeck conferred with Nguyen for two hours: first to review and discuss evidence, then to discuss the defendant's offer to remand. The assistance of someone fluent in Vietnamese was certainly needed during those two hours. But the bulk of the work in this case required Manbeck to review English language records, interview witnesses in English, and conduct English language legal research on U.S. federal law. (Dkt. No. 8-1 at 3.) None of those activities, nor the nine hours billed preparing and defending her request for attorney's fees, knowledge of Vietnamese.

         One way to look at this situation is that the need was not so much for an attorney who was fluent in Vietnamese as it was for the services of an attorney, and of a Vietnamese interpreter. An attorney not fluent in Vietnamese could have litigated this case as competently using an interpreter, and included the interpreter's compensation as part of the costs. See 28 U.S.C. §1920(6) (providing that compensation of interpreters is taxable as costs). Manbeck saved costs by not hiring an interpreter. The enhancement she is requesting is the same amount that would be reasonable for an interpreter. For this reason, the Court finds that the assistance of someone fluent in Vietnamese was necessary to litigation for the two hours Manbeck was communicating with Nguyen.[4] That person could have been an interpreter, but in this case it was Manbeck herself.

         If fluency in Vietnamese were the only basis on which Manbeck was seeking an enhancement, the Court would award that enhancement for two hours only. But as discussed below, there are other reasons a fee enhancement is appropriate. The Court therefore treats Manbeck's Vietnamese fluency as providing modest support for the requested enhancement.

         Manbeck's Expertise in Social ...

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