                         UNITED STATES DISTRICT COURT
                         FOR THE DISTRICT OF COLUMBIA

    ANDRE BROOKS,
           Plaintiff

           v.                                     Civil Action No. 15-00436 (CKK/GMH)
    NANCY A. BERRYHILL, 1
    Acting Commissioner of Social Security,
           Defendant

                               MEMORANDUM OPINION
                                  (January 7, 2019)
          This case was referred to Magistrate Judge G. Michael Harvey for consideration of

Plaintiff Andre Brooks’ [23] Motion for Attorney’s Fees and preparation of a Report and

Recommendation pursuant to Local Civil Rule 72.3(a). See Order Referring Case to a

Magistrate Judge, ECF No. 26. Plaintiff requested reimbursement of fees in the amount

of $14,958.08, which was later amended to $14,140.89. After briefing on the fee motion

was completed, Magistrate Judge Harvey held a hearing on the motion, followed by his

order for additional briefing on certain issues relating to Plaintiff’s counsel having been an

Administrative Law Judge (“ALJ”) prior to her representation of Plaintiff in this matter. In

his [41] Report and Recommendation, Magistrate Judge Harvey recommended an award

of fees in the reduced amount of $7,639.52, on grounds that because Plaintiff’s attorney

was a former ALJ who “participat[ed] as an adjudicator” in Plaintiff’s administrative

proceedings before the Social Security Administration, “to avoid the appearance of

impropriety, fees accrued by her from the date on which she became aware that she had

presided over part of Plaintiff’s administrative case should not be recovered.” Report and


1
  Pursuant to Fed. R. Civ. P. 25(d), Nancy A. Berryhill has been automatically substituted
for Carolyn W. Colvin, whom the parties’ pleadings name as Defendant.
                                              1
Recommendation, ECF No. 41, at 2. Plaintiff Andre Brooks (“Plaintiff’ or “Mr. Brooks”)

filed his [42] Objections to the Report and Recommendation, and those Objections are

currently pending before this Court. Upon consideration of the pleadings, 2 relevant legal

authorities, and the record in this case, the Court DENIES Plaintiff’s objections and

ADOPTS the Magistrate Judge’s Report and Recommendation IN FULL, with the effect

that Plaintiff’s Motion for Attorney’s Fees is GRANTED IN PART AND DENIED IN

PART.

        I. Procedural Background

        Plaintiff Andre Brooks filed a Complaint in this Court pursuant to 42 U.S.C.

§405(g), claiming his entitlement to Social Security disability benefits after being denied

benefits at the administrative level. The case was referred by the undersigned to a

Magistrate Judge for full case management.         See Order, ECF No. 3.         After the

Administrative Record was filed, Plaintiff filed a motion for judgment of reversal and

Defendant Social Security Administration (“Defendant” or “SSA”) moved for a judgment

of affirmance.    Magistrate Judge Deborah A. Robinson issued a [26] Report and

Recommendation recommending that the reversal be granted in part and the affirmance be

denied and further, that the case be remanded to the SSA for further proceedings consistent



2
  The pleadings before this Court include: Pl.’s Mot. for Attorney’s Fees Under the Equal
Access to Justice Act, ECF No. 23; Def.’s Opp’n to Pl.’s Mot. for Attorney’s Fees Under
the Equal Access to Justice Act, ECF No. 24; Pl.’s Amendment and Reply to Def.’s
Opp’n to Pl.’s Mot., ECF No. 25; Def.’s Supp. to her Opp’n, ECF No. 28; Pl.’s Reply in
opposition to Def.’s Supp., ECF No. 30; Pl.’s Supp. Br. in Support of Petition for
Attorney’s Fees, ECF No. 34; Def.’s Supp. Br. in Support of Denying Pl’s Request for
Fees Under the Equal Access to Justice Act (EAJA), ECF No. 36; Pl.’s Reply to Def.’s
Supp. Br., ECF No. 39; Def.’s Resp. to Pl.’s Reply to Def.’s Supp. Br., ECF No. 40;
Report and Recommendation by Magistrate Judge G. Michael Harvey, ECF No. 41; Pl.’s
Objections to the Report and Recommendation, ECF No. 42; Def.’s Resp. to Pl.’s
Objections, ECF No. 45; and Pl.’s Reply to Def.’s Resp., ECF No. 46.
                                            2
with her Report and Recommendation.           Neither party objected to that Report and

Recommendation, which was subsequently adopted in full by this Court. See Order, ECF

No. 21; Mem. Op., ECF No. 22. This Court vacated the Commissioner’s determination of

equivalence at Step Three and remanded the matter back to the SSA for further proceedings

on the applicability of Plaintiff’s impairments under the appropriate listing. Plaintiff filed

a subsequent motion for fees which was referred for resolution to Magistrate Judge Harvey.

See Order, ECF No. 26.

       Initially, Defendant challenged Plaintiff’s Motion for Fees on grounds that the

number of hours requested by Plaintiff was too high, and the total amount claimed was

much higher than “the average EAJA [Equal Access to Justice Act] fee award in Social

Security disability cases [,]” which is around $3,000-$4,000. Def.’s Opp’n to Pl.’s Mot.

for Fees, ECF No. 24, at 2. In her Reply, Plaintiff explained that the hours billed in this

case resulted from the “size and complexity of the factual record” and from the “appalling

number of legal errors [that] had to be addressed.” Pl.’s Amendment and Reply, ECF No.

25, at 9 (emphasis omitted). Plaintiff argued that because her attorney’s contemporaneous

time records were entitled to deference and there should be no de facto cap on fees, Plaintiff

was entitled to reimbursement of all fees incurred. Id. at 3-7.

       The issue at the crux of this Memorandum Opinion — Ms. Benagh’s involvement

in Plaintiff’s case while she was an ALJ handling claims for social security benefits— was

not raised in the initial round of briefing by the parties but was instead raised by Defendant

in her supplement to her opposition. Defendant explained that “[a]lthough counsel for the

Commissioner noted Ms. Benagh’s involvement in the case as an ALJ in his brief (Dkt No.

17), he was unaware of the implications until recently when he attended ethics training,”



                                              3
which prompted him to follow up by contacting his EAJA coordinator and the agency’s

representative sanctions coordinator. Def.’s Supp. to Opp’n, ECF No. 28, at 4. Defendant

argued that, pursuant to 28 U.S.C. § 2412(d)(1)(A), “special circumstances” made any

award of fees unjust because Plaintiff’s counsel Christin Benagh violated the “lifetime

representational restriction” set forth in 18 U.S.C. §207(a)(1), which is a conflict of interest

statute. See Def.’s Supp. to Opp’n, ECF No. 28, at 1-2. Defendant elaborated that the

administrative record in this case confirms that Ms. Benagh was acting as an ALJ when she

held a brief hearing regarding Plaintiff’s claims. Id. at 3; see Admin. Record, ECF No. 10

(containing a 14-page transcript of the November 15, 2012 oral hearing). While Ms.

Benagh did not resolve any part of Plaintiff’s claim, she did order a consultative physical

examination before continuing the hearing. That second hearing was convened before a

different ALJ, and Ms. Benagh had no further involvement in Plaintiff’s case until she

entered an appearance as counsel for Plaintiff about a week after he filed his pro se action

in this case to appeal his denial of Social Security benefits. See Complaint, ECF No. 1;

Notice of Appearance, ECF No. 5.

       Responding to Defendant’s Supplement, Plaintiff asserted that fees may not be

denied because: (1) the fees belong to Plaintiff who was the prevailing party; (2) Defendant

has no authority to enforce 18 U.S.C. Section 207; (3) Defendant’s allegations should have

been brought under the ABA Model Rules; (4) Defendant has not shown that, while she

was an ALJ, Plaintiff’s counsel “substantially” participated in Plaintiff’s case insofar as

she “made no decision, made no findings of fact, made no determination with respect to

any level of the sequential evaluation process, made no recommendations, and had no

contact” regarding Plaintiff’s claim afterwards; and (5) Defendant has not shown that



                                               4
Plaintiff’s counsel had knowledge of her involvement in Plaintiff’s case until such time as

she was reviewing Defendant’s motion for affirmance, and after she was on notice, counsel

consulted a colleague to determine if it was an ethical violation to represent the Plaintiff in

this matter and was told it was not. See generally Pl.’s Reply in Opp’n to Def.’s Supp.,

ECF No. 30. Magistrate Judge Harvey held a hearing on the fee motion, and subsequent

to the hearing, he instructed the parties to provide supplemental briefing regarding the issue

of Ms. Benagh’s previous involvement, namely: (1) whether Defendant waived her

objections to Ms. Benagh’s conduct; (2) whether Mr. Benagh possessed knowledge under

18 U.S.C. Section 207(a)(1); and (3) whether Ms. Benagh was personally and substantially

involved in Plaintiff’s administrative hearing. See generally Pl.’s Supp. Br., ECF No. 34;

Def.’s Supp. Br., ECF No. 36; Pl.’s Reply to Def.’s Supp. Br., ECF No. 39; and Def,’s

Resp. to Pl.’s Reply, ECF No. 40.

       In his Report and Recommendation, the Magistrate Judge found that Ms. Benagh’s

representation of Plaintiff was a conflict of interest, which constituted special

circumstances making an award of attorney’s fees unjust. The Magistrate Judge found no

waiver by the Defendant of her objection to Ms. Benagh’s representation of Plaintiff, and

he concluded that “even if there [was] no clear violation of an ethical rule or statute, Ms.

Benagh’s conduct [was] sufficiently troubling to damage the ‘integrity of the judicial and

administrative process.’” Report and Recommendation, ECF No. 41, at 19. Accordingly,

he concluded that this constituted “special circumstances” under EAJA, which weighed

into the determination of legal fees, with the effect that Plaintiff should not recover fees

incurred on and after Ms. Benagh became aware of the conflict.




                                              5
       Plaintiff timely objected to the Magistrate Judge’s finding that “special

circumstances” justified the reduction of the fee award, and Plaintiff’s objections will be

discussed in detail in Part III of this Memorandum Opinion. Defendant did not initially

respond to the Plaintiff’s objections until ordered by this Court to provide her position on

Plaintiff’s objections. In her response to Plaintiff’s objections, Defendant indicated that

“the Commissioner accepts Magistrate Judge Harvey’s award,” his “finding that additional

fees are unwarranted,” and his explanation that attorney misconduct “may constitute a

special circumstance sufficient to reduce or deny a request for EAJA attorney’s fees.”

Def.’s Resp. to Pl.’s Objections, ECF No. 45, at 1-2.

       In reply, Plaintiff noted that Defendant has seemingly abandoned the claim that Ms.

Benagh’s representation violated 18 U.S.C. Section 207(a)(1) or D.C. Rules 1.11 and 1.12,

and further, that the Magistrate Judge failed to mention that the Justice Department

declined prosecution of Ms. Benagh, and the D.C. Bar permitted the representation, and

accordingly, these determinations should have “precluded” the Magistrate Judge from

finding a conflict of interest. Pl.’s Reply to Def.’s Resp., ECF No. 46, at 2-3.

       II. Legal Standard

       Under Federal Rule of Civil Procedure 72(b)(2) and Local Civil Rule 72.3 (b), once

a Magistrate Judge has entered his recommended disposition, a party may file specific

written objections. The district court must review de novo any motion for attorney’s fees

referred to a Magistrate Judge, where a party proffers an objection to the Report and

Recommendation. See Baylor v Mitchell Rubenstein & Assocs., P.C., 857 F.3d 939, 947

(D.C. Cir. 2017); see also Local Civil Rule 72.3(c) (“A district judge shall make a de novo

determination of those portions of a magistrate judge’s findings and recommendations to



                                             6
which objection is made. . .”) The district court may “accept, reject, or modify the

recommended disposition.” Fed. R. Civ. P. 72(b)(3), Local Civil Rule 72.3(c).



       III. Analysis

       Under the EAJA, a court may award a plaintiff reasonable attorney’s fees and

expenses if he: (1) is the prevailing party; (2) has incurred fees or expenses; (3) the position

of the United States in the action was not substantially justified; and (4) no special

circumstances make an award of fees unjust. See 28 U.S.C. §§ 2412 (b), (d)(1)(A). While

a plaintiff is entitled to a fee award if the above requirements are met, district courts are

generally accorded “substantial discretion in fixing the amount of an EAJA award” and

charged with ensuring that the final award is reasonable based on the evidence submitted.

Commissioner, INS v. Jean, 496 U.S. 154, 163 (1990); see also Okla. Aerotronics, Inc. v.

United States, 943 F.2d 1344, 1347 (D.C. Cir. 1991) (“[T]he determination of how much

to trim from a claim for fees is committed to the [district] court’s discretion.”); see

generally Porter v. Astrue, 999 F. Supp. 2d 35, 38 (D.D.C. 2013) (in analyzing an EAJA

fee claim, the district court resolves the following issues, which involve some measure of

discretion: (1) whether a cost-of-living adjustment is warranted; (2) the appropriate

Consumer Price Index (“CPI”) to use; (3) the correct cost-of-living measure; (4) the

baseline for the CPI measurement; (5) the number of hours that ware reasonable; and (6)

the costs involved.)

        In the instant case, the Magistrate Judge’s Report and Recommendation

acknowledged that Plaintiff was the prevailing party who incurred fees and further noted

that “Defendant ma[de] no argument that her position was substantially justified [.]” Report



                                               7
and Recommendation, ECF No. 41, at 5-6. As previously noted, the Magistrate Judge did

find however that there were “special circumstances” that justified a reduction in the

amount of fees.

       Plaintiff proffered five objections to the Magistrate Judge’s findings in the Report

and Recommendation: (1) the Magistrate Judge ignored the D.C. Bar Rules; (2) the

Magistrate Judge has not established that there was any appearance of impropriety; (3) the

Magistrate Judge erroneously relied on so-called attorney misconduct to reduce fees, but

found no misconduct on the part of Ms. Benagh; (4) the Magistrate Judge’s analysis

ignored all misconduct by the Defendant is this proceeding; and (5) in the event that a

portion of the reasonable fee cannot be paid to Ms. Benagh, Mr. Brooks asserts his

ownership to the unpaid portion. See Pl.’s Objections, ECF No. 42. In his [46] Reply to

the Defendant’s Response to his Objections, Plaintiff paraphrased his five objections as

follows: (1) Ms. Benagh was cleared of charges that she violated conflict of interest statutes

and ethical rules; (2) Ms. Benagh’s representation was permitted by D.C. Bar Ethics

Opinion No. 315; (3) the Magistrate Judge improperly found that Ms. Benagh’s prior

participation had been substantial and she was guilty of a conflict of interest; (4) the

Magistrate Judge failed to “balance the equities;” and (5) Plaintiff will be deprived of the

attorneys fee that belongs to him. Each of the Plaintiff’s objections [as set forth in his

Objections and his Reply] will be addressed below and to the extent that such objections

are duplicative, they will be consolidated.

       As a preliminary matter, this Court notes that EAJA does not define the term

“special circumstances” or provide examples of the circumstances that would make a fee

award unjust. Courts have generally found that the “statutory language expresses a



                                              8
congressional directive for courts ‘to apply traditional equitable principles’ in determining

whether a prevailing party should receive a fee award under EAJA.” Air Transport Ass’n

of Canada v. F.A.A., 156 F. 3d 1329, 1333 (D.C. Cir. 1998) (quoting Oguachuba v. INS,

706 F.2d 93, 98 (2d Cir. 1983)).      In determining the circumstances under which that

exception applies, the scope of a district court’s equitable powers is broad, Brown v. Plat,

563 U.S. 493, 538 (2011), and the equitable doctrine of “’unclean hands’ pervades the

jurisprudence of ‘special circumstances’ under EAJA.” Air Transport, 156 F. 3d at 1333.

       In his Report and Recommendation, the Magistrate Judge reasoned that “[a]ttorney

misconduct can form the basis for a finding of unclean hands.” Report and

Recommendation, ECF No. 41, at 12 (citing several cases addressing various types of

misconduct). He concluded further that the “special circumstances” exception under EAJA

“acts in tandem with a court’s inherent power to govern the practice of lawyers in litigation

before it.” Report and Recommendation, ECF No. 41, at 13 (citing Abdelgalei v. U.S. Atty.

Gen., 443 F. App’x 458, 463 (11th Cir. 2011) (quotation and internal quotation marks

omitted)); see also Chambers v. NASCO, Inc., 501 U.S. 32, 43 (1991) (Within the inherent

powers of federal courts is “the power to control admission to its bar and to discipline

attorneys who appear before it.”) Upon examining the record in this case, the Magistrate

Judge determined that there was an “appearance of impropriety” when Ms. Benagh

represented Plaintiff after serving as an ALJ when he brought his claim. The Magistrate

Judge then applied the legal principles to the circumstances of this case to support his

recommendation that the “special circumstances” exception should preclude the award of

fees incurred by Ms. Benagh after she was on notice of her prior role as an ALJ in Plaintiff’s

case. Upon de novo review of the caselaw supporting the Magistrate Judge’s analysis of



                                              9
the interrelationship between this Court’s governance of the practice of attorneys appearing

before it and the imposition of the “special circumstances” exception under EAJA, this

Court finds the underlying legal analysis to be sound.

         Plaintiff’s specific objections to the Magistrate Judge’s findings are addressed

below.



         A. Application of the D.C. Bar Rules and Conflict of Interest Statute [Objection

         No. 1, Reply [Objection] No. 1]

         Prior to the Magistrate Judge’s preparation of a Report and Recommendation,

Defendant suggested that Plaintiff’s counsel likely violated three provisions governing the

conduct of former public employees —18 U.S.C. § 207 and Rules 1.11(a) and 1.12(a) of

the District of Columbia Rules of Professional Conduct. Magistrate Judge Harvey cited to

the statute and the Rules, and commented that:

         Thus, as relevant here, each of these rules prohibits a former public employee from
         accepting employment in a matter in which she “personally and substantially”
         participated while a public employee. Section 207(a) also includes an explicit
         knowledge component. A prime motivation behind each of these provisions is
         protection of “the integrity of the judicial and administrative process,” Kessenich,
         684 F.2d at 95, and avoidance of “both actual impropriety and the appearance of
         impropriety,” D.C. Rules of Prof’l Conduct, Rule 1.11(a) cmt. 5; see also United
         States v. Childress, 731 F. Supp. 547, 549 n.3 (D.D.C. 1990) (indicating that Rule
         1.11 (a) is concerned with appearance of impropriety).


Report and Recommendation, ECF No. 41, at 15. In her objections, Plaintiff argues that

the Magistrate Judge misconstrued Rule 1.11 “to prohibit even de minimis acts by an ALJ”

and he ignored the D.C. Bar Ethics Opinion 315, which explains the standard for assessing

“substantial participation.” Pl.’s Objections, ECF No. 42, at 9.




                                              10
       In response to Plaintiff’s assertion that Ms. Benagh did not substantially participate

in the Plaintiff’s case before the SSA, the Magistrate Judge cited to the record of the hearing

where Ms. Benagh served as an ALJ, as follows:

       The Administrative Record shows that on November 15, 2012, ALJ Benagh
       commenced an administrative hearing on Plaintiff’s claim. AR 52. Plaintiff
       appeared with counsel; a vocational expert was also present. Id. ALJ Benagh noted
       that Plaintiff was “entitled . . . to an independent judge,” which meant “that nobody
       could tell [her] how to decide [the] case.” Id. She admitted certain records into
       evidence and began to take testimony from Plaintiff, noting that “the purpose of the
       hearing” was to take testimony that would then be “put together with the other
       evidence to make up the complete record [she would] consider in determining
       whether [Plaintiff was] disabled under the Social Security Act.” Id. at 52, 55.
       Plaintiff testified about his seizure disorder, id. at 55-59, and ALJ Benagh asked
       Plaintiff’s then-counsel about incidences of broken bones, suggesting that listing
       1.06 was a proper standard under which to evaluate Plaintiff’s claim, id. at 59-62.
       Stating that Plaintiff did not look like he was in “real great shape here,” the ALJ
       ordered a consultative examination and x-rays on both legs, and adjourned the
       hearing after a total of 19 minutes. Id. at 50, 62, 64. The subsequent hearing and
       determination on Plaintiff’s claim was completed by a different ALJ.


Report and Recommendation, ECF No. 41, at 15-16.

       Addressing Plaintiff’s reliance on the standards imposed by statute and/or under the

rules of the D.C. Bar, this Court finds that such reliance is misplaced because Magistrate

Judge Harvey did not base his decision on a violation of the statute or rules. The Magistrate

Judge did not opine on whether Ms. Benagh “violated the letter of 18 U.S.C. § 207(a) or

Rules of Professional Conduct 1.11(a) or 1.12(a);” instead, he focused on the “appearance

of impropriety” created when Ms. Benagh acted as Plaintiff’s counsel after “presid[ing]

over a hearing during which she repeatedly indicated that she would be resolving Plaintiff’s

disability claim.” Report and Recommendation, ECF No. 41, at 17. Ms. Benagh “took

testimony from Plaintiff [and] had a vocational expert ready to testify [and even] suggested

that his claim should be evaluated under listing 1.09.” Id. She also ordered a consultative



                                              11
examination “to further develop the record.” Id.      The Magistrate Judge concluded that

Ms. Benagh “acted in a judicial capacity in administrative proceedings in SSA” prior to

retiring and representing Plaintiff on his appeal of the unfavorable SSA decision. Id. at

17-18. Reviewing the actions taken by Ms. Benagh in her role as an ALJ, this Court finds

that Ms. Benagh engaged in more than de minimis acts and acted in a judicial capacity

during the administrative proceeding, prior to her representation of Plaintiff in the matter

pending before this Court.

         Furthermore, Plaintiff’s assertion that she was cleared of charges that she violated

section 207(a)(1) or rules 1.11 and 1.12 and her references to D.C. Bar Ethics Opinion 315

are not dispositive for the same reason. The focus herein is not specifically on a violation

of a statute or rule but rather on an appearance of impropriety affecting the “integrity of

the judicial and administrative process.” Kessenich v. Commodity Futures Trading Com’n.,

684 F.2d 88, 95 (D.C. Cir. 1982). “Public confidence in judicial and quasi-judicial

proceedings can best be maintained by steering clear of situations which call into question

the regularity of the process.” Id. at 98. Accordingly, Plaintiff’s objection based on

application of D.C. Bar Rules and the conflict of interest statute is denied.

         B. Establishing an Appearance of Impropriety [Objection No. 2, Reply [Objection]

No. 2]

         Plaintiff’s second objection to the Report and Recommendation alleges that the

Magistrate Judge failed to establish that there was an appearance of impropriety.

Encompassed within this second objection is Plaintiff’s observation that her dual roles were

not considered problematic, which is allegedly evidenced by the fact that the attorneys

representing Defendant “all saw the Defendant’s motion for affirmance, stating that Ms.



                                              12
Benagh had prior involvement” but none of them “raised any concerns about the integrity

of the administrative process or appearance of impropriety until January, 2017.” Pl.’s

Objections, ECF No. 42, at 15. At the same time however, Magistrate Judge Harvey noted

that even after Ms. Benagh became aware of her prior involvement in the case and “became

concerned enough to consult another former ALJ regarding the ethical implications of her

representation of Plaintiff [,]” she failed to bring the possible conflict-of-interest to the

attention of the court or opposing counsel. Report and Recommendation, ECF No. 41, at

18.

       Regarding the crux of Plaintiff’s second objection, Plaintiff concedes that the

Magistrate Judge “could consider an appearance of impropriety” but in so doing, he was

“obligated to apply the determinations of the Justice Department (which declined

prosecution) and the opinions of the D.C. Bar (which permitted the representation).” Pl.’s

Reply to Def’s Resp., ECF No. 46, at 5. Plaintiff contends that his attorney’s conduct was

permitted by D.C. Bar Ethics Opinion 315 because Ms. Benagh’s involvement with Mr.

Brooks’ claim while she was an ALJ did not entail “substantial participation” as that term

is defined in Ethics Opinion 315. Id. at 3-4. This contention has been addressed and

rejected in the previous subsection of this Opinion.

       Plaintiff asserts that the Magistrate “believed Ms. Benagh had violated 18 U.S.C. §

207(a)(1) and the DC Bar Rules” and he “label[ed] her actions ‘attorney misconduct.’”

Pl.’s Objections, ECF No. 42, at 8 (citing ECF 41 at 11).              Plaintiff’s statement

mischaracterizes the Report and Recommendation, which does not label Ms. Benagh’s

actions specifically as attorney misconduct, but which has a subsection labelled “attorney

misconduct” explaining the interrelationship between the “special circumstances”



                                             13
exception in EAJA and the equitable doctrine of “unclean hands,” which may be based on

attorney misconduct. The Magistrate Judge acknowledged that there may be “no clear

violation of an ethical rule or statute,” but he did find counsel’s conduct “sufficiently

troubling” insofar as it damaged the integrity of the administrative and judicial processes.

Report and Recommendation, ECF. No. 41, at 19.

       In concluding that there was an “appearance of impropriety” by Ms. Benagh, the

Magistrate Judge focused on a decision by the United States Court of Appeals for the

District of Columbia Circuit involving two consolidated petitions regarding the same

Commodity Futures Trading Commission (“CFTC”) decision, where the plaintiff moved

to disqualify the other petitioner’s attorney, who had not only previously worked as a

lawyer for the CFTC but had reviewed plaintiff’s agency complaint and determined

whether it stated a complete and appropriate claim. Kesssenich, supra., 684 F. 2d at 94.

The attorney asserted that his duties were purely ministerial and further, he did not exercise

discretion and was not privy to confidential information nor did he remember the case. Id.

at 96. The motion to disqualify was granted upon reasoning that there was an “appearance

of impropriety that has an impact beyond its effect on the immediate parties involved.” Id.

at 98. The Circuit Court did not suggest that the attorney had not acted with integrity and

candor, but it found that employees [of the Commission] who exercised discretion in a case

“should not later represent one of the parties in the same matter before the courts.” Id. at

98. The Circuit Court concluded that “[t]he policy objectives of a federal statutory scheme

may necessitate disqualification of a litigant’s chosen counsel, even though no present

evidence of impropriety exists.” Id. at 99.




                                              14
        The Magistrate Judge applied similar reasoning in this case when he concluded that,

even in the absence of a violation of the statute or the Rules of Professional Conduct, there

was an appearance of impropriety based on the actions taken by Ms. Benagh while she was

an ALJ charged with considering Plaintiff’s disability claim. Analyzing the Kessenich

decision, this Court agrees that it is instructive in providing support for a finding that there

was an appearance of impropriety in this case where Ms. Benagh acted as an ALJ during

an administrative hearing on Plaintiff’s claim for benefits prior to acting as his counsel in

this matter. Accordingly, this Court finds that Plaintiff’s objection based on an alleged

failure to establish an appearance of impropriety is denied.

        C. Reliance on “so-called attorney misconduct” when no misconduct was found

[Objection No. 3, Reply [Objection] No. 3]

        Plaintiff contends that the Magistrate Judge erroneously relied on so-called attorney

misconduct to reduce fees — which Plaintiff mischaracterizes as a sanction — but the

Magistrate Judge found no misconduct on the part of Ms. Benagh. 3 This statement by

Plaintiff acknowledges that the Magistrate Judge did not rely on a violation of statute or

ethical rules, but instead, he determined there was an appearance of impropriety that

warranted a reduction in fees. Plaintiff argues that the rationale set forth in the Report and

Recommendation to justify a fee reduction is faulty because it relies upon cases that “speak

only to the undisputed authority of the Court to govern practice and reduce fees for

misconduct, or they address actual misconduct,” and because there was no finding of

misconduct in this case, there should have been no reduction of fees. Plaintiff proffers



3
 This Court finds it unnecessary to address Plaintiff’s contentions about monetary
“sanctions” as no monetary sanction was imposed in this case, but rather, there was a
recommended reduction in the total fees awarded.
                                              15
further that “[t]he Magistrate relied on Kessenich, but that was a disqualification case,

providing no authority to impose sanctions.” Pl.’s Objections, ECF No. 42, at 17. Plaintiff

asserts generally that there is no precedent for reducing fees based on an “appearance of

impropriety.”

       Plaintiff’s assertion ignores that this Court has discretion in awarding reasonable

fees. See 28 U.S.C. Section 2412 (b) (stating that “a court may award reasonable fees and

expenses of attorneys . . .”); see also Meyler v. Commissioner of Social Security, Civ. No.

02-4669 (GEB), 2008 WL 2704831, *1-2 (D.N.J. 2008) (examining legislative history and

explaining that the special circumstances exception “gives the court discretion to deny [fee]

awards where equitable considerations dictate an award should not be made” and noting

that “equitable principles may dictate that plaintiff’s counsel’s fees be partially reduced”);

see generally Role Models America, Inc. v. Brownlee, 353 F.3d 962 (D.C. Cir. 2004)

(addressing an award of legal fees under EAJA and the general discretion permitted a court

in determining the appropriateness of fees in the context of the hours billed and rates

employed by counsel and staff).

       The Court finds that Plaintiff’s third objection is without merit insofar as this Court

has already explained that while Ms. Benagh may not have violated a statute or rule, there

was an appearance of impropriety that gave rise to the special circumstances exception,

which justifies a reduced fee award. Based on the circumstances of this case, where Ms.

Benagh played more than a de minimis role as an ALJ on Plaintiff’s claim, this Court finds

that there was an appearance of impropriety, which constitutes special circumstances

warranting a reduction in the fee award. Accordingly, Plaintiff’s third objection to the

Report and Recommendation is denied.



                                             16
    D. Ignoring misconduct by the Defendant and failure to “balance the equities”

[Objection No. 4, Reply [Objection] No. 4]

   Plaintiff argues that the Magistrate Judge ignored any misconduct by the Defendant

which “more than counter-balanced any reduction of the EAJA fee for a ‘appearance of

impropriety.’” Pl.’s Reply, ECF No. 46, at 8. Plaintiff’s proffered “equities” that weigh in

his favor are as follows: (1) Defendant’s position was not substantially justified; (2)

Defendant was aware of Ms. Benagh’s role as an ALJ for at least 11 months but delayed

bringing its concerns to the attention of the Court or Ms. Benagh; (3) Defendant alleged

that Ms. Benagh violated 18 U.S.C. Section 207(a)(1) and D.C. Bar Rule 1.11 and 1.12,

and these allegations are non-meritorious; (4) Defendant’s aforementioned allegations

were motivated by bad intent; and (5) Defendant attempted to mislead the Court through

misstatements of fact.

   First, this Court need not address Plaintiff’s contention that Defendant’s position was

not substantially justified as that factor was already conceded in the context of Plaintiff’s

entitlement to an award of fees. Second, at the time that the administrative record was filed

in this case, both parties would have been on notice that Plaintiff’s claim had been

considered by Ms. Benagh in her capacity as an ALJ. Furthermore, Magistrate Judge

Harvey noted that after Plaintiff’s counsel became cognizant of this fact, she consulted with

another ALJ to see if it raised an ethical violation, but she failed to raise this issue with

either the Court or opposing counsel; therefore “equities: surrounding this issue do not

necessarily favor the Plaintiff. The Court notes that if Plaintiff had raised this issue in a

timely manner with the Court and opposing counsel, this issue might have been resolved

at that time and the Defendant might have elected to waive its objection to the



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representation. Third, Defendant’s allegation that Plaintiff’s counsel appeared to have

engaged in some violation of the lifetime representation restriction — raised in Defendant’s

Supplement to her Opposition — was obviously not baseless on its face as it resulted in the

Magistrate Judge ordering supplemental briefing after he held a motion’s hearing. While

he did not ultimately find a violation of the statute or the D.C. Bar Rules, he did find that

there was an appearance of impropriety, and accordingly, the “equities” surrounding this

issue do not favor the Plaintiff. Fourth, Plaintiff’s sweeping allegations of Defendant’s bad

intent are unsupported by the record in this case.

   Fifth, the facts underlying Plaintiff’s allegation that Defendant attempted to “mislead”

the Court were weighed by the Magistrate Judge when he made the following

recommendation for a partial reduction as opposed to a complete denial of fees:

   SSA did not provide Ms. Benagh with a list of her cases when she left the agency, thus
   increasing the difficulty of detecting potential conflicts of interest. Moreover, once the
   conflict was spotted, the agency failed to address it prior to briefing on the fee petition;
   indeed, the agency was aware of Ms. Benagh’s participation in this case as an ALJ for
   at least 11 months before it raised an objection. The undersigned credits Ms. Benagh’s
   representation that she was unaware of the conflict until after she had filed her opening
   brief on the merits. The undersigned therefore recommends that Plaintiff recover fees
   for the work Ms. Benagh performed prior to that date — November 27, 2015 — when
   she learned of her prior participation in Plaintiff’s case before SSA.


Report and Recommendation, ECF No. 41, at 20. Accordingly, Plaintiff’s allegations that

Defendant’s “misconduct” was ignored and equities were not balanced is contradicted by

the record in this case, and this Court denies Plaintiff’s fourth objection to the Report and

Recommendation.

       E. Any unpaid portion of the attorney’s fees belongs to Plaintiff [Objection No. 5,

Reply [Objection] No.5]




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       Plaintiff objects to any reduction in the fee award on grounds that “[n]othing done

by Ms. Benagh lessens Mr. Brooks’ entitlement to a reasonable legal fee.” Pl.’s Objections,

ECF No. 42, at 26. Accordingly, Plaintiff suggests that “[i]f the fee payable under the [fee]

assignment w[as] to be reduced, the remainder belongs to, and must be paid to, Mr. Brooks

by the terms of the Equal Access to Justice Act and Ratcliff.” Id. This Court notes that that

the Supreme Court’s decision in Ratcliff requires that any fee award be paid directly to a

plaintiff to permit any necessary offset of debts owed to the federal government before such

fee award is remitted to the plaintiff. Astrue v. Ratcliff, 560 U.S. 586 (2010). In this case,

the Report and Recommendation recommends that “the fee award, subject to any

applicable offset, be made payable to Plaintiff and sent to the business address of Plaintiff’s

counsel.” Report and Recommendation, ECF No. 41, at 28; see Skvorak v. Berryhill, 264

F. Supp. 3d 12, 14-15 (D.D.C. 2017) (finding that it would not violate the Anti-Assignment

Act to make the award payable to the claimant but mail it to his attorney, subject to any

offset for government debt owed by the claimant).

       Plaintiff’s assertion that he is entitled to the entire attorney’s fee amount even if his

attorney is not so entitled is unworkable as it demands an award of all attorney’s fees, to

be paid to the Plaintiff —which would be a windfall of the amount not paid to the attorney

— and it would remove any discretion by this Court to determine a reasonable fee under

EAJA. Accordingly, Plaintiff’s fifth objection to the Report and Recommendation is

denied by this Court.

       IV. Conclusion

       This Court has concluded that Plaintiff’s five objections to the Report and

Recommendation should be DENIED and further, that there was an appearance of



                                              19
impropriety by Plaintiff’s counsel which constitutes “special circumstances” warranting a

reduction of attorney’s fees, namely, the exclusion of attorney’s fees as of November 27,

2015, after Plaintiff’s counsel learned of her prior participation in Plaintiff’s case. That

participation consisted of presiding over a hearing involving Plaintiff’s claim for benefits

in which she indicated that she would be the decisionmaker, admitted exhibits into

evidence, took Plaintiff’s testimony, asked questions of Plaintiff’s counsel, discussed a

possible basis for his disability under Listing 1.06, and ordered sua sponte an additional

consultative examination and x-rays on both legs as possibly supporting his claim. When

the hearing reconvened, another ALJ presided over Plaintiff’s claim. Allowing Plaintiff a

partial recovery of fees as opposed to disallowing all fees considers the circumstances and

timing of Plaintiff’s counsel becoming aware of her prior involvement in this case — even

though she failed to notify the Court and opposing counsel of her concerns that this might

be a conflict — and Defendant’s failure to raise this issue earlier. The Magistrate Judge’s

determination of a reasonable rate and number of hours expended was not challenged by

the Plaintiff.   Accordingly, it is the opinion of this Court that the Report and

Recommendation, ECF No. 41, should be ADOPTED IN FULL, with the effect that

Plaintiff’s Motion for Attorney’s Fees should be GRANTED IN PART AND DENIED IN

PART. Fees in the amount of $7,639.52, representing $7,536.34 for attorney time and

$103.18 for paralegal time, should be awarded. This fee award, subject to any applicable

offset, should be made payable to the Plaintiff and sent to the business address of Plaintiff’s

counsel. A separate Order accompanies this Memorandum Opinion.


DATED: January 7, 2019                         ____________/s/_________________
                                               COLLEEN KOLLAR-KOTELLY
                                               UNITED STATES DISTRICT JUDGE


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