David Day v. At&t Disability Income Plan , 608 F. App'x 454 ( 2015 )

FILED
NOT FOR PUBLICATION APR 09 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DAVID DAY, No. 11-17150
Plaintiff - Appellant, D.C. No. 5:06-cv-01740-JW
v.
MEMORANDUM*
AT&T DISABILITY INCOME PLAN,
Defendant - Appellee.
Appeal from the United States District Court
for the Northern District of California
James Ware, District Judge, Presiding
Argued and Submitted November 18, 2014
San Francisco, California
Before: REINHARDT, THOMAS, and CHRISTEN, Circuit Judges.
David Day appeals the district court’s orders granting in part and denying in
part his motions for attorneys’ fees in his action filed against the AT&T Disability
Income Plan (“the Plan”) under the Employee Retirement Income Security Act of
1974 (“ERISA”), 29 U.S.C. § 1001 et seq. We have jurisdiction under 28 U.S.C.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
§ 1291, and we affirm. Because the parties are familiar with the factual and legal
history of the case, we need not recount it here.
“We review for abuse of discretion a district court’s decision to award or
deny attorney’s fees in an ERISA action, as well as a district court’s determination
of the amount of reasonable attorney’s fees.” Van Gerwen v. Guarantee Mut. Life
Co., 214 F.3d 1041, 1045 (9th Cir. 2000) (citations omitted). We also review for
abuse of discretion a district court’s decision to grant or deny prejudgment interest.
Simeonoff v. Hiner, 249 F.3d 883, 894 (9th Cir. 2001). “‘This court reviews de
novo any elements of legal analysis and statutory interpretation involved in an
attorney fees decision.’” Trs. of Const. Indus. & Laborers Health & Welfare Trust
v. Redland Ins. Co., 460 F.3d 1253, 1256 (9th Cir. 2006) (citations omitted).
I
A
The Plan contends that we lack jurisdiction over Day’s appeal of the district
court’s July 2008 order because Day failed to appeal that order within thirty days
of the entry of judgment in June 2010. Although an appellant’s failure to file a
notice of appeal within thirty days of the entry of judgment ordinarily deprives this
court of jurisdiction, Day’s failure to do so is not fatal here because the district
court subsequently entered an amended judgment.
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The Supreme Court has recognized that a district court’s decision to amend a
judgment may re-start the period during which a litigant may appeal, provided that
the amended judgment differs materially from the earlier judgment. See FTC v.
Minneapolis-Honeywell Regulator Co., 344 U.S. 206, 211-12 (1952) (holding that
when a “lower court changes matters of substance, or resolves a genuine
ambiguity, in a judgment previously rendered[,] the period within which an appeal
must be taken or a petition for certiorari filed [may] begin to run anew”); United
States v. Doe, 374 F.3d 851, 853-54 (9th Cir. 2004) (“Where a district court enters
an amended judgment that revises legal rights or obligations, the period for filing
an appeal begins anew.”). The test for whether an amended judgment materially
differs from the prior judgment is a “practical one. The question is whether the
lower court, in its second order, has disturbed or revised legal rights and
obligations which, by its prior judgment, had been plainly and properly settled with
finality.” Minneapolis-Honeywell Regulator Co., 344 U.S. at 212. The appeal
period may be re-set “even where the appeal concerns a different matter from that
revised by the district court.” Doe, 374 F.3d at 854.
Here, the August 2011 judgment differed materially from the June 2010
judgment. The June 2010 judgment did not resolve (or even mention) Day’s
underlying ERISA claim and, instead, merely stated that the Plan was entitled to
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judgment on the offset issue. In contrast, the August 2011 amended judgment
specifically addressed the underlying merits of Day’s ERISA claim by
acknowledging that Day had prevailed on his motion for summary judgment on
that claim and providing that he was “entitled to attorney fees and prejudgment
interest with respect to his claim for short-term disability benefits.” The amended
judgment therefore resolved issues which the June 2010 judgment did not address
– including, most notably, the merits of Day’s claim for short-term disability
(STD) benefits – and thus opened a new thirty-day period during which Day could
file his notice of appeal. Because it is undisputed that Day filed his notice of
appeal during that thirty-day period, we have jurisdiction over his appeal of the
July 2008 attorneys’ fees order.
B
The magistrate judge did not abuse his discretion by adjusting downward the
lodestar amount in the July 2008 attorneys’ fees order. To determine the amount
of fees to award in ERISA actions, we use the “hybrid lodestar/multiplier
approach” used by the Supreme Court in Hensley v. Eckerhart, 461 U.S. 424(1983). Van Gerwen, 214 F.3d at 1045. Under that approach, the court first
“determines the ‘lodestar’ amount by multiplying the number of hours reasonably
expended on the litigation by a reasonable hourly rate.” Id. Then, after excluding
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from the lodestar amount any hours that were not reasonably expended, the court
may “adjust the lodestar upward or downward using a ‘multiplier’ based on factors
not subsumed in the initial calculation of the lodestar.” Id.The magistrate judge properly followed this approach here. His order sets
forth numerous reasons for reducing Day’s lodestar hourly rate and hours
reasonably expended. These reasons include the fact that Day’s counsel spent an
excessive amount of time on several tasks as compared to the time spent on similar
tasks by Day’s prior counsel and attorneys in other ERISA cases; used block-
billing to record his time; and charged his other clients a lower hourly rate than the
lodestar rate he requested. All of these reasons supported the reduction in the
lodestar amount. See Welch v. Metro. Life Ins. Co., 480 F.3d 942, 948 (9th Cir.
2007) (“We do not quarrel with the district court's authority to reduce hours that
are billed in block format. The fee applicant bears the burden of documenting the
appropriate hours expended in the litigation and must submit evidence in support
of those hours worked.”); Nat’l Ass’n of Concerned Veterans v. Sec’y of Def., 675
F.2d 1319, 1326 (D.C. Cir. 1982) (noting that “the actual rate that applicant’s
counsel can command in the market is itself highly relevant proof of the prevailing
community rate” under the lodestar method). These reasons also undermine Day’s
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assertion that the magistrate judge’s decision was based primarily on the Plan’s
representation that it would not object to such a rate.
To the extent Day argues that he never consented to the magistrate judge’s
authority, that argument is belied by the record. Day’s counsel signed and filed a
stipulation in July 2008 which specifically stated: “the undersigned parties hereby
voluntarily consent to have United States Magistrate Judge Richard Seeborg
conduct any and all further proceedings in this case involving plaintiff David
Day’s pending motion for attorneys’ fees, including issuance of a final order on
this issue. ”
II
A
The district court did not abuse its discretion in adopting the magistrate
judge’s November 2010 report and recommendation in its August 2011 attorneys’
fees order. The magistrate judge recommended that Day’s fees award be limited to
the fees he expended pursuing his STD benefits claim on remand. Because this
was the only claim on which Day prevailed in court after exhausting his
administrative remedies, it was reasonable for the district court to limit his fees
award in this manner. Likewise, it was reasonable for the district court to conclude
that Day should not recover attorneys’ fees expended in pursuit of administrative
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remedies that he was able to obtain without a court order. Cann v. Carpenters'
Pension Trust Fund, 989 F.2d 313, 315-17 (9th Cir. 1993).
Day’s contention that the district court abused its discretion by withdrawing
its referral of his motion to a magistrate judge is similarly without merit. Day had
an opportunity to object to the November 2010 report and recommendation. Even
if he had not had such an opportunity, he has no right to have his attorneys’ fees
motion heard by a magistrate judge. District courts have the authority under 28
U.S.C. § 636(c)(4) to withdraw the referral of any civil matter to a magistrate judge
upon a showing of good cause. Here, the district court had good cause to withdraw
the referral of Day’s attorneys’ fees motion because the motion had been pending
for over a year and the magistrate judge to whom it had originally been referred
had retired.
B
The district court did not abuse its discretion in restricting his award of
prejudgment interest in its August 2011 order. Specifically, Day challenges the
court’s decisions to: (1) limit the period for which prejudgment interest could be
awarded; (2) apply the interest rate set forth in 28 U.S.C. § 1961; and (3) restrict
prejudgment interest to his STD benefits award. As with the limits the district
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court imposed on Day’s fees award, the limits imposed on Day’s prejudgment
interest award are all reasonable.
“‘Whether interest will be awarded [in an ERISA case] is a question of
fairness, lying within the court's sound discretion, to be answered by balancing the
equities.’” Shaw v. Int’l Ass’n of Machinists & Aerospace Workers Pension Plan,
750 F.2d 1458, 1465 (9th Cir. 1985) (citations omitted). Here, the district court
expressly engaged in this fairness analysis and, after reviewing the record and
supplemental briefing, concluded that prejudgment interest should be awarded for
the period between the Plan Administrator’s final denial of Day’s STD claim in
January 2006 and Day’s receipt of those benefits on remand in August 2008.
Given that Day never obtained any other favorable judgment from the court
concerning his ERISA claims, the court’s decision to limit prejudgment interest to
this period was reasonable.
The district court’s decision to apply the interest rate set forth in 28 U.S.C.
§ 1961 was also reasonable. We have specifically held that, “[g]enerally, ‘the
interest rate prescribed for post-judgment interest under 28 U.S.C. § 1961 is
appropriate for fixing the rate of pre-judgment interest unless the trial judge finds,
on substantial evidence, that the equities of that particular case require a different
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rate.’” Blankenship v. Liberty Life Assur. Co. of Bos., 486 F.3d 620, 628 (9th Cir.
2007) (citations omitted).
Day failed to present substantial evidence justifying a higher rate. Although
he argued that he was entitled to a higher rate because he was forced to roll over
his other benefits into an IRA, that assertion was not supported by the record.
Indeed, in Day’s previous appeal in this matter, we held that “the district court did
not err in finding that ‘there is no evidence that [Day’s] election to rollover his
lump-sump pension benefit into an IRA account was not fully voluntary.’” Day v.
AT&T Disability Income Plan, 698 F.3d 1091, 1100 n.5 (9th Cir. 2012), cert.
denied, 133 S. Ct. 2010 (2013).
Finally, the district court’s decision to restrict prejudgment interest to the
award of STD benefits was reasonable in light of the fact that the court never
awarded Day any other kinds of benefits. As the district court explained, its
“judgment with respect to [Day]’s ERISA claim pertained to [his] eligibility for
STD benefits” and “there was no court judgment or ‘award’ with respect to [Day]’s
eligibility for LTD benefits.” Accordingly, because it is undisputed that Day was
able to obtain his LTD benefits entirely through the administrative process – and
did not obtain any favorable court judgment or order on that issue – the district
court did not abuse its discretion by declining to account for the timing of Day’s
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LTD benefits claim when it calculated the period for which prejudgment interest
would be awarded.
AFFIRMED.
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