Dave Nagy v. Group Long Term Disability ( 2018 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 21 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DAVE NAGY, No. 16-16160
Plaintiff-Appellee, D.C. No. 3:14-cv-00038-HSG
v.
MEMORANDUM*
GROUP LONG TERM DISABILITY
PLAN FOR EMPLOYEES OF ORACLE
AMERICA, INC. and HARTFORD LIFE
AND ACCIDENT INSURANCE
COMPANY,
Defendants-Appellants.
DAVE NAGY, No. 17-15491
Plaintiff-Appellee, D.C. No. 4:14-cv-00038-HSG
v.
GROUP LONG TERM DISABILITY
PLAN FOR EMPLOYEES OF ORACLE
AMERICA, INC. and HARTFORD LIFE
AND ACCIDENT INSURANCE
COMPANY,
Defendants-Appellants.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Appeal from the United States District Court
for the Northern District of California
Haywood S. Gilliam, Jr., District Judge, Presiding
Argued and Submitted May 14, 2018
San Francisco, California
Before: THOMAS, Chief Judge, FRIEDLAND, Circuit Judge, and ZILLY,**
District Judge.
Defendant-Appellants Group Long Term Disability Plan for Employees of
Oracle America, Inc. and Hartford Life and Accident Insurance Company
(collectively “Appellants”) appeal the district court’s decision to overturn a denial
of so-called “own occupation” long-term disability benefits under an employee
welfare plan governed by the Employee Retirement Income Security Act of 1974
(“ERISA”), as well as the ensuing award of attorney’s fees to Plaintiff-Appellee
Dave Nagy (“Nagy”). We affirm the award of “own occupation” benefits but
vacate the award of attorney’s fees.
1. Where, as here, the district court reviews de novo the denial of benefits, that
review is limited to the administrative record unless “circumstances clearly
establish that additional evidence is necessary to conduct an adequate de novo
review of the benefit decision.” Mongeluzo v. Baxter Travenol Long Term
Disability Benefit Plan, 46 F.3d 938, 944 (9th Cir. 1995) (quoting Quesinberry v.
**
The Honorable Thomas S. Zilly, United States District Judge for the
Western District of Washington, sitting by designation.
2
Life Ins. Co. of N. Am., 987 F.2d 1017, 1025 (4th Cir. 1993)). Several such
circumstances were present here, including “complex medical questions,” “issues
regarding the credibility of medical experts,” and the fact that the additional
evidence at issue—a decision granting Nagy social security benefits—“could not
have [been] presented in the administrative process.” Opeta v. Nw. Airlines
Pension Plan for Contract Emps., 484 F.3d 1211, 1217 (9th Cir. 2007) (quoting
Quesinberry, 987 F.2d at 1027). Furthermore, we have recognized that social
security decisions can be particularly important evidence in ERISA cases. See
Salomaa v. Honda Long Term Disability Plan, 642 F.3d 666, 679 (9th Cir. 2011).
For these reasons, the district court did not abuse its discretion by considering the
social security decision even though it was not part of the administrative record.
2. The district court evaluated de novo whether Nagy qualified for “own
occupation” benefits. That mixed question boiled down to whether Nagy’s
condition rendered him “unable to perform with reasonable continuity” work
comparable to that he had been “regularly performing” beforehand. Because that
is “about as factual sounding as any mixed question gets,” we review for clear
error.1 U.S. Bank Nat’l Ass’n ex rel. CWCapital Asset Mgmt. LLC v. Vill. at
1
Despite the paper-intensive focus of ERISA cases, it remains true that the
district court “has both the closest and the deepest understanding of the record,”
U.S. Bank, 138 S. Ct. at 968. Cf. United States v. Hinkson, 585 F.3d 1247,
3
Lakeridge, LLC, 138 S. Ct. 960, 968 (2018). Although the facts here may be
susceptible to more than one interpretation, we cannot say that the district court
clearly erred in finding that Nagy’s condition rendered him unable to perform work
comparable to his prior job duties.2 See Ocean Garden, Inc. v. Marktrade Co., 953
F.2d 500, 502 (9th Cir. 1991) (noting that, for a finding to be clearly erroneous, it
must “strike us as wrong with the force of a five-week old, unrefrigerated dead
fish”).
3. “[A]bsent special circumstances, a prevailing ERISA employee plaintiff
should ordinarily receive attorney’s fees from the defendant.” Smith v. CMTA-IAM
Pension Tr., 746 F.2d 587, 590 (9th Cir. 1984). No such circumstances exist here,
so the district court properly decided to award attorney’s fees. Appellants argue
that the district court nevertheless abused its discretion in awarding fees in the
amount of $245,305.50.
First, Appellants maintain that the fee award should not have compensated
work performed in connection with administrative proceedings ordered by the
district court regarding so-called “any occupation” benefits that occurred after this
1258-59 (9th Cir. 2009) (en banc) (reviewing deferentially the district court’s
assessment of paper evidence proffered as part of a motion for a new trial).
2
The district court also did not err by relying on the opinions of Nagy’s
treating physicians, especially given that “[t]here is no blood test or other objective
laboratory test” for Nagy’s condition. Salomaa, 642 F.3d at 677.
4
litigation about “own occupation” benefits was complete. Although Appellants
made this same argument below, and although the district court never addressed it,
Nagy responds only by mistakenly asserting that the district court “addressed every
argument made by [Appellants].” Nagy has therefore forfeited any other argument
he might have offered in defense to this portion of the fee award, which included
compensation for work performed by his attorney as well as by a paralegal.3 See,
e.g., Clem v. Lomeli, 566 F.3d 1177, 1182 (9th Cir. 2009).
Second, Appellants argue that the district court abused its discretion in
calculating the fee award using an hourly rate of $675/hour for Nagy’s attorney,
notwithstanding record evidence suggesting that this rate was in line with the
market rate for similar services performed by attorneys with similar qualifications
and experience. Appellants maintain, as they did in district court, that the rate
should have been no higher than $500/hour given the skill of Nagy’s attorney and
the quality of representation he provided. Nagy again offers no meaningful
response, so he has forfeited any argument that might have helped his cause here
too. See id.3
Indeed, Nagy expressly waived any claim to these fees after oral
argument. And in any event, the disputed work was performed in connection with
administrative proceedings regarding “any occupation” benefits that occurred prior
to a separate lawsuit about “any occupation” benefits. Such work would not be
compensable under ERISA even if Nagy were to prevail in that lawsuit. See Cann
v. Carpenters’ Pension Tr. Fund for N. Cal., 989 F.2d 313, 316 (9th Cir. 1993).
5
We vacate the award of attorney’s fees and remand for recalculation of that
award. On remand, the district court should exclude all work performed in
connection with administrative proceedings and calculate the fee award using an
hourly rate of $500/hour for Nagy’s attorney. Each party shall bear their own costs
on appeal.
AFFIRMED in part, VACATED in part, and REMANDED.
6
FILED
Dave Nagy v. Group Long Term Disability, et al., 16-16160, 17-15491 JUN 21 2018
MOLLY C. DWYER, CLERK
FRIEDLAND, J., concurring: U.S. COURT OF APPEALS
I concur in our decision to affirm the award of “own occupation” benefits
and to vacate the award of attorney’s fees. I write separately to emphasize that, in
determining a reasonable hourly rate, district courts must take into account “the
experience, skill, and reputation of the attorney requesting fees.” Welch v. Metro.
Life Ins. Co., 480 F.3d 942, 946 (9th Cir. 2007) (quoting Chalmers v. City of Los
Angeles, 796 F.2d 1205, 1210 (9th Cir. 1986)). This means that the “[q]uality of
representation” is a key factor in determining a reasonable hourly rate. Van
Gerwen v. Guarantee Mut. Life Co., 214 F.3d 1041, 1046 (9th Cir. 2000). District
courts must of course be guided by the prevailing rate charged in the community
for similar work performed by comparable attorneys, rather than “the rates actually
charged the prevailing party.” Welch , 480 F.3d at 946. But that is no license to
overlook the skill of the particular attorney requesting fees and the quality of
representation he or she has provided.
The magistrate judge’s report and recommendation was thorough in many
respects, but it neglected this crucial inquiry—even though Appellants argued, and
our precedents instructed, that it was required. The district court did not correct
1
the oversight. This matters because the services of Nagy’s attorney do not appear
to have been worth anything close to the $675/hour he was awarded. 1
The trial briefs that Nagy’s attorney prepared in district court misstated or
omitted key arguments. For example, the only argument in the opening trial brief
regarding the crucial opinions of Dr. Early was that those opinions did “not add
anything except for a continuation of [Nagy’s] symptoms.” That is just wrong.
And nowhere did Nagy’s attorney point out that at least two medical professionals
hired by Appellants conducted less-than-careful reviews of Nagy’s medical
records. Specifically, Dr. Welbel missed Dr. Montoya’s documenting of five-plus
symptoms of chronic fatigue syndrome, and Dr. Sullivan overlooked Nagy’s prior
diagnoses of depression. To earn $675/hour, an attorney should be expected to
find favorable facts like these, especially over the course of 300-plus hours of
work.
The performance of Nagy’s attorney in this court was similarly
unimpressive. What follows, for example, is his entire defense of the fee award of
nearly a quarter-million dollars in the argument section of the answering brief he
prepared for this appeal:
[The magistrate judge] carefully reviewed the Hummell factors, and as we
set out in the statement of the case concerning the fee award, she addressed
1
I note that the presumptive ten-percent cap on imposing a “haircut” on the
number of hours claimed, see Moreno v. City of Sacramento, 534 F.3d 1106, 1112
(9th Cir. 2008), was no bar to significantly reducing the hourly rate requested.
2
every argument made by [Appellants]. Because [Appellants] have not
explained why any part of [the] Report and Recommendation is wrongly
decided, there is no basis to set aside the fee award.
That’s it. And as our disposition describes, neither of those sentences is accurate.
Furthermore, the portion of “the statement of the case concerning the fee award”
referenced above—which Nagy’s attorney appears to have produced by copying
and pasting extended excerpts of the magistrate judge’s report and
recommendation—fails to explain in any meaningful way why the report and
recommendation’s reasoning was correct.
Determining a reasonable hourly rate is “inherently difficult.” Chalmers,
796 F.2d at 1210 (quoting Blum v. Stenson, 465 U.S. 886, 895 n.11 (1984)). But
that difficulty does not excuse district courts from evaluating the quality of
representation, particularly when there has been a challenge to whether the level of
quality justifies the requested hourly rate.
3