1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7

NORTHERN DISTRICT OF CALIFORNIA

8

9

10 M. F., 11 Plaintiff, No. C 20-08742 WHA

12 v.

13 KILOLO KIJAKAZI, ORDER RE MOTION TO ALTER Acting Commissioner of the Social Security JUDGMENT 14 Administration, 15 Defendant.

16 17 18 In this social security appeal, plaintiff moves to alter judgment of an award of attorney’s 19 fees pursuant to the Equal Access to Justice Act (EAJA). This motion is suitable for resolution 20 on the papers. Civ. L.R. 7-6. The hearing is accordingly VACATED, and for the reasons that 21 follow, the motion is DENIED. 22 An administrative law judge denied plaintiff’s application for disability benefits, 23 whereafter plaintiff appealed the decision to federal district court. A November 2021 order 24 herein found the ALJ had improperly discounted plaintiff’s symptom testimony and 25 consequently granted plaintiff’s motion for summary judgment and remanded the matter to the 26 Acting Commissioner (Dkt. No. 25). Plaintiff then filed a motion for $28,780.09 in attorney’s 27 fees under the EAJA. An order granted plaintiff’s motion but reduced the award to $17,466.72 1 based on several factors (Dkt. No. 35). Plaintiff now challenges that determination and moves 2 to alter the judgment pursuant to Rule 59(e). 3 Under Rule 59(e) it is appropriate to alter or amend a judgment: “(1) if such motion is 4 necessary to correct manifest errors of law or fact upon which the judgment rests; (2) if such 5 motion is necessary to present newly discovered or previously unavailable evidence; (3) if such 6 motion is necessary to prevent manifest injustice; or (4) if the amendment is justified by an 7 intervening change in controlling law.” Allstate Ins. Co. v. Herron, 634 F.3d 1101, 1111 (9th 8 Cir. 2011) (citation omitted). This is “an extraordinary remedy which should be used 9 sparingly.” Ibid. Rule 59(e) “may not be used to relitigate old matters, or to raise arguments 10 or present evidence that could have been raised prior to the entry of judgment.” Exxon 11 Shipping Co. v. Baker, 554 U.S. 471, 485 n.5 (2008). 12 First, plaintiff conflates the prior order’s reasonableness evaluation with an evaluation of 13 whether the government’s position was “substantially justified.” Plaintiff asserts: “This case 14 was based on legal error and the other six alternative legal theories were mot [sic] adjudicated 15 by this Court. Nevertheless, all six other legal arguments are merit arguments and cannot 16 legally not be compensated” (Br. 2). The prior order, however, did not find that only one of 17 the government’s positions was not substantially justified and award fees only on that basis. 18 Rather, it noted that the government did not contest whether its position was substantially 19 justified. It then reduced the attorney’s fees award based on an analysis of the reasonableness 20 of the fees requested (Dkt. No. 35 at 2). 21 To that end, our court of appeals has held, “Nothing in these provisions [of the EAJA] 22 extends fee-shifting to issues not adjudicated.” Hardisty v. Astrue, 592 F.3d 1072, 1077 (9th 23 Cir. 2010). Accordingly, one of the five independent reasons the prior order proffered for 24 lowering the requested fee award centered on how several issues raised in plaintiff’s summary 25 judgment motion were not adjudicated (Dkt. No. 35 at 3). Plaintiff has accordingly failed to 26 show any errors of law or any other justification under Rule 59(e) to alter judgment on this 27 issue. 1 Second, plaintiff takes issue with the prior order’s finding that counsel’s time entries 2 were inaccurate and inflated (Dkt. No. 35 at 3–4). To justify these time entries, e.g., reading 3 the complaint a few days after filing it, plaintiff’s counsel explains that he had hired a new 4 attorney who had lied about her experience and that: “I had to take her off the case and re-read 5 the Complaint as the timesheet says after she filed it about a week before both the Order to 6 proceed pseudonymously and summons was issued” (Br. 4). In other words, counsel appears 7 to justify certain hours the prior order found excessive because he had to double-check 8 incompetent co-counsel’s work. Yet counsel still requested attorney’s fees based on that 9 attorney’s time entries. Plaintiff’s argument thus supports the prior order’s reduction in 10 attorney’s fees. Billing for incompetent counsel clearly ranks as unreasonable. 11 In fact, plaintiff doubles down on this argument, asserting that all the duplicative billing 12 cited by the prior order as a reason to reduce the attorney’s fees award were entered by the 13 same untrustworthy attorney (Br. 5). Again, this argument backfires on plaintiff. It simply 14 provides further justification for the reduction of attorney’s fees made by the prior order. 15 Third, plaintiff argues the prior order incorrectly concluded that the government did not 16 act in bad faith (Br. 5–6). Plaintiff does not provide any additional evidence or legal authority 17 to support a finding of bad faith. Instead, plaintiff again focuses on issues with her initial 18 disability determination explanation (AR 54–65). As explained in the prior order, nothing in 19 that document demonstrates the government’s bad faith (Dkt. No. 35 at 6). Plaintiff’s instant 20 motion essentially reargues her merits case, asserting, for example, that the initial 21 determination should not have rejected various medical opinions. This does not evince bad 22 faith. Nor does it meet any of the requirements for Rule 59(e). Plaintiff further argues that the 23 DDS “falsely state[d]” that plaintiff had no consultative examiners (AR 57), but that purported 24 error does not rise to the level of vexatious, wanton, or oppressive conduct. See Brown v. 25 Sullivan, 916 F.2d 492, 495 (9th Cir. 1990). And plaintiff has failed to demonstrate that the 26 statement “this is a denial case” in the findings of fact and analysis of evidence should be 27 deemed vexatious or otherwise qualifies as bad faith. 1 Fourth, in her reply brief, plaintiff dramatically expands the scope of her argument, 2 asserting that the Social Security Administration has engaged in a “40-year fraud on our 3 country’s population with psychiatric and/or developmental disabilities,” specifically “by 4 unlawfully applying the Grids to Major Depression and VE hypotheticals not being based on 5 all functional limitations in the record” (Reply Br. 2, 3). Plaintiff also cites (for the first time) 6 Rule 60(b)(3) as a basis for relief. All of this is far, far afield of the scope of plaintiffs original 7 motion and has not been properly raised. This order will not consider matters not specifically 8 and distinctly raised and argued in the opening brief. See Padgett v. Wright, 587 F.3d 983, 985 9 n.2 (9th Cir. 2009). 10 In sum, none of plaintiff's arguments justify altering the judgment in this matter. The 11 motion is DENIED. 12 IT IS SO ORDERED.

|| Dated: June 7, 2022. 3 15 Pee 5 ILLIAM ALSUP

NITED STATES DISTRICT JUDGE

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