W.D. La. Notes Split Re Fees Awardable under 42 U.S.C. § 406(b)

Per Raposa v. U.S. Com'r Social Sec. Admin. Slip Copy, 2009 WL 3460433 (W.D. La. Oct. 22, 2009):

David Raposa (“Plaintiff”) commenced this civil action to appeal the Commissioner's denial of disability benefits. This court entered a judgment that reversed and remanded the case for further proceedings pursuant to sentence four of 42 U.S.C. § 405(g). Soon afterward, the court granted Plaintiff's motion for fees under the Equal Access to Justice Act (“EAJA”) and awarded $3,618.75.

. . .

With respect to the substance of the motion, Plaintiff signed a contingency fee agreement to pay 25% of any past due benefits awarded. That agreement may provide the amount of the Section 406(b) award so long as the amount is reasonable under the facts of the case. Gisbrecht v. Barnhart, 122 S.Ct. 1817, 1828 (2002). In the Fifth Circuit, Section 406(b) is construed to limit the combined amount of attorney fees awarded by the agency under Section 406(a) and by the court under Section 406(b) to a total of 25% of the past due benefits. Dawson v. Finch, 425 F.2d 1192 (5th Cir.1970). ^FN1 Thus, the court must take into consideration any amount awarded by the agency.

FN1. There is a circuit split on this issue, with some courts holding that a court may award an amount equal to 25% of past due benefits, irrespective of any amount awarded by the agency under Section 406(a). See Clark v. Astrue, 529 F.3d 1211 (9th Cir.2008) (describing the split).

Court of Federal Claims Notes Split Re Culpability Needed for Spoliation Finding

Per Consolidated Edison Co. of New York, Inc. & Subsidiaries v. U.S. --- Fed.Cl. ----, 2009 WL 3418533 (Fed. Cl. Oct. 21, 2009):

The relevant circuit for this court, the United States Court of Appeals for the Federal Circuit, has not definitively addressed whether a finding of bad faith is required before a court can find spoliation or impose an adverse inference or other sanction. Because many of the spoliation cases decided to date by the Federal Circuit have been patent cases in which the Federal Circuit applies the law of the relevant regional circuit, the Federal Circuit has not had the opportunity to announce a position binding on this court as to a possible “bad faith” or other standard to trigger a spoliation of evidence sanction. See United Med. Supply Co. v. United States, 77 Fed. Cl. at 266. Consequently, judges of the United States Court of Federal Claims have taken differing positions on the “bad faith” requirement. Compare, id. at 268 (“[A]n injured party need not demonstrate bad faith in order for the court to impose, under its inherent authority, spoliation sanctions.”), with Columbia First Bank, FSB v. United States, 54 Fed. Cl. 693, 703 (2002) (noting findings of bad faith are required before the court can determine that there was spoliation). While fully discussing the issues raised by a spoliation claim in the United Medical Supply case, a judge of this court discussed how the circuits are also split on this issue, with their views covering a broad spectrum. United Med. Supply Co. v. United States, 77 Fed. Cl. at 266 (and cases cited therein).

Ninth Circuit Creates Split Re Meaning of "Actual Damages" in 11 U.S.C. s. 362(k)(1)

Per Sternberg v. Johnston, --- F.3d ----, 2009 WL 3381162 (9th Cir. Oct. 22, 2009):

Sternberg also argues that the bankruptcy court erred in calculating Johnston's damages because it awarded attorney fees not only for the work associated with remedying the stay violation but also for the subsequent adversary proceeding in which Johnston sought to collect damages for the stay violation. We agree. . . . The relevant statute, 11 U.S.C. § 362(k)(1), states that “an individual injured by any willful violation of a stay ... shall recover actual damages, including costs and attorneys' fees, and, in appropriate circumstances, may recover punitive damages.” . . .

[W]e conclude that the plain meaning of “actual damages” points to a different result. The dictionary defines “actual damages” as “[a]n amount awarded ... to compensate for a proven injury or loss; damages that repay actual losses.” BLACK'S LAW DICTIONARY 416 (8th ed.2004). Following this definition, the proven injury is the injury resulting from the stay violation itself. Once the violation has ended, any fees the debtor incurs after that point in pursuit of a damage award would not be to compensate for “actual damages” under § 362(k)(1).

We recognize that the Fifth Circuit appears to have held to the contrary: “The lower courts in our Circuit have concluded that it is proper to award attorney's fees that were incurred prosecuting a section 362(k) claim [,]” and “[w]e adopt the same reading of section 362(k) and therefore agree.” Young v. Repine (In re Repine), 536 F.3d 512, 522 (5th Cir.2008). We do not create a circuit split lightly. But the above-quoted language is all the court said on the issue. Without more, we are hard-pressed to find this decision persuasive.

Sixth Circuit Notes Split Re Interpretation of Speedy Trial Act

Per U.S. v. Tinklenberg, 579 F.3d 589 (6th Cir. Sept. 3, 2009):

Of more substance is Tinklenberg's argument that the Speedy Trial Act limits to ten days the time excludable for the transportation of a defendant to and from the location of his competency evaluation. Although 18 U.S.C. § 3161(h)(1)(A) appears to exclude all time during which a defendant's competency evaluation and determination is pending, § 3161(h)(1)(F) provides that any delay caused by the transportation of a defendant “to and from places of examination or hospitalization” that is longer than ten days is “presumed to be unreasonable.” Whether the ten day limit in § 3161(h)(1)(F) applies to the time in which a defendant is transported to a place of examination pursuant to a court's competency evaluation order appears to be a matter of first impression for this Court. The few other appellate courts to have ruled on the issue are split: the First and Fifth Circuits have held that an unreasonable delay in the transportation of the defendant for a competency determination is not excludable, see United States v. Noone, 913 F.2d 20, 25-26 (1st Cir.1990) and United States v. Castle, 906 F.2d 134, 137 (5th Cir.1990), while the Second Circuit has held that any delay associated with a competency evaluation from the date of the order directing the evaluation until completion of the competency hearing, including delay from transporting a defendant for the evaluation, is excludable under § 3161(h)(1)(A), see United States v. Vasquez, 918 F.2d 329, 333 (2d Cir.1990).

E.D. Tex. Magistrate Notes Split Re Whether Magistrate's May Rule on Motions to Remand

Per Doucet v. State Farm Fire and Cas. Co., Slip Copy, 2009 WL 3157478 (E.D. Tex. Sept. 25, 2009):

A threshold question is whether a motion to remand is a pretrial matter not dispositive of a party's claim or defense that magistrate judges may hear and decide pursuant to 28 U.S.C. § 636(b)(1)(A) or (3).

Lower courts are split on this question,^FN1 and there is no definitive ruling from the governing United States Court of Appeals for the Fifth Circuit. But, in a recent case, the Fifth Circuit voiced no objection to a magistrate judge's ruling on a remand motion when the presiding district judge considered the aggrieved party's objection.^FN2 Since the parties here will have an opportunity to secure district-judge review of any perceived errors or defects in the order,^FN3 the undersigned elects to decide the motion rather than issue a more cumbersome recommendation for its disposition.

FN1. Compare Saxon v. Thomas, No. 06-2339, 2007 WL 1974914, at *2 (W.D. La. June 29, 2007), Robinson v. Cheetah Transp., No. Civ. A. 06-0005, 2006 WL 1453036, at *1 (W.D.La. May 17, 2006), Vaquillas Ranch Co. v. Texaco Exploration & Prod., Inc., 844 F.Supp. 1156, 1160-63 (S.D.Tex.1994), and City of Jackson v. Lakeland Lounge of Jackson, Inc., 147 F.R.D. 122, 124 (S.D.Miss.1993) (holding that motions to remand are not dispositive and, consequently, may be referred to a United States magistrate judge for determination), with First Union Mortgage Corp. v. Smith, 229 F.3d 992, 996 (10th Cir.2000), and In re U.S. Healthcare, 159 F.3d 142, 146 (3d Cir.1998) (both holding that inasmuch as remand orders banish litigants from federal court, they are equivalent to final decisions or dispositive actions that must ultimately be performed by a district judge).