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Logan v. Berryhill

United States District Court, N.D. Illinois, Eastern Division

April 12, 2017

NANCY A. BERRYHILL, [1] Acting Commissioner of Social Security, Defendant.


          Jeffrey Cole Magistrate Judge

         This Opinion revisits plaintiff's counsel's petition for an award of attorney's fees pursuant to 42 U.S.C. §406(b)(1)(a). Normally, this should be an uncomplicated and straightforward matter. This is one of those times when, unfortunately, it is not.

         As discussed in the previous Order, [Dkt. #58], Mr. Rose filed the petition on March 15, 2017, more than two years after the Commissioner sent out the Notice of Change in Benefits on November 22, 2014. In his petition, counsel claimed the first he heard of the Commissioner's decision was in a notice dated November 23, 2016. This notice was sent to him as counsel of record, and the Commissioner has submitted a copy of the notice sent to him on November 22, 2014. The notice was sent to Mr. Rose's office address at 799 Roosevelt Road in Glen Ellyn, Illinois. [Dkt. #59-2]. Mr. Rose claims that he never received the notice because he “had previously closed his office at the said location and had begun using a post office box” as his address. [Dkt. #60, Page 2 ¶3]. Significantly, he doesn't say when he moved. As we shall see, the point is important, and the omission significant.

         A search of court electronic filing records shows that as recently as January 31, 2016, Mr. Rose was consistently filing cases and appearances listing 799 Roosevelt Road as his address and had been doing so for about fourteen months after he now claims he closed his office. See Abbott v. Colvin, No. 16-1811, Dkt. # 1 (complaint); Lattanzio v. Colvin, 15-11868, Dkt. #1 (complaint), #3 (appearance); Shoffner v. Colvin, No. 15-9187, Dkt #1 (complaint), #3 (appearance); Herwalt v. Colvin, No. 15-9012, Dkt. #1 (complaint), #3 (appearance); Stanic v. Colvin, No. 15-8425, Dkt. #1 (complaint), #3 (appearance); Filipos v. Colvin, No. 15-7719, Dkt. #1 (complaint), #3 (appearance); Colangelo v. Colvin, No. 15-6777, Dkt. #1 (complaint), #4 (appearance); Guest v. Colvin, No. 15-2843, Dkt. #1 (complaint), #3 (appearance); McWilliams v. Colvin, No. 15-1588, Dkt. #1 (complaint); #3(appearance); Ryan v. Colvin, No. 14-10282, Dkt. #1 (complaint), #3 (appearance); Tapia v. Colvin, No. 14-10170, Dkt. #3 (complaint), Dkt. #4 (appearance).

         As every one of those cases was initiated after November 2014, counsel is either manufacturing the excuse of closing his office prior to the notice sent to him or is so lackadaisical as to file over a year's worth of documents in federal court - in clear violation of the rules - without noting his purportedly new address and continuing to use his “old” one. Common sense and human experience - which always have a role to play in the solution of legal problems, cf. United States v. Montoya De Hernandez, 473 U.S. 531, 542 (1985); United States v. Reichling, 781 F.3d 883 (7th Cir. 2015); Cooney v. Rossiter, 583 F.3d 967, 971 (7th Cir.2009); National Amusements, Inc. v. Town of Dedham, 43 F.3d 731, 743 (1st Cir. 1995); Greenstone v. Cambex Corp., 975 F.2d 22, 26 (1st Cir.1992) (Breyer, C.J.); Posner, How Judges Think, 116 (Harvard University Press 2008) - counsel against blind acceptance of Mr. Rose's “explanation [which is] contrary to common sense and experience.” United States v. Ali, 952 F.2d 405 (7th Cir. 1992).

         But there is even a clearer case of misrepresentation here. As already noted, counsel originally claimed that he first learned of the administrative resolution of plaintiff's case in November 2016 - by way of the November 23, 2016 notice. [Dkt. #56, at 2 (“Counsel received this information toward the end of November, 2016.”)]. Confronted with not only the November 2014 notice, but a second notice dated August 16, 2016 [Dkt. #59-3], counsel was forced to admit in his reply brief that he lied to the court about not receiving any notice until November of 2016. He claimed he “did not act on that [August 2016] document because his experience told him to wait for a second notice which [he says] frequently revised the relevant information provided by the first notice.” [Dkt. #60, ¶5]. Whatever counsel's experience in that regard might be, it does not account for or justify representing to the court that he received no notice until November 2016. There are many ways to deal with what are perceived to be impediments in the judicial system. Lying is not one of them. Cf. Bryson v. United States, 396 U.S. 64, 72 (1969).

         Counsel not only dallied in filing his fee petition, he dallied this entire proceeding - repeatedly. When counsel delays in pursuing a case, the back benefits eventually found to be due the plaintiff accumulate. But as the Supreme Court said in Gisbrecht v. Barnhart, 535 U.S. 789, 808 (2002), “[i]f the attorney is responsible for delay, for example, a reduction is in order so that the attorney will not profit from the accumulation of benefits during the pendency of the case in court.” And a plaintiff suffers needlessly when his lawyer does not take appropriate action to see that the award is promptly distributed. The Commissioner explains that, due to the administrative niceties of this case, that accumulation was not terribly significant. That may be so when measured against the Commission's total obligations. But under that test, any impropriety or delay would automatically be excused. That cannot be.

         Mr. Rose needed a total of sixteen months to file his memorandum in support of his motion for reversal of the Commissioner's decision. [Dkt. #20, #38]. He sought, and was granted, five extensions of time, totaling an additional thirteen months. The excuses in this case, like those in so many of his other cases, varied, but they always involved the same attempted justifications that he has been using in case after case, with judge after judge, year after year. There was the claimed illness of his wife, who he said also was his secretary [Dkt. #21]; vacation [Dkt. #25]; power outages [Dkt. #29]; his own illness [Dkt. #31]; an accumulated backlog of work [Dkt. #34], etc. A review of Mr. Rose's cases reveals that these are the standard excuses used always. And yet, the record in this and other cases reveals that he continues to take on work and clients hopelessly inconsistent with his claimed incapacity to perform; he does not cease taking vacations; does not either replace his “secretary” or bring on someone to aid her; and despite clear and unambiguous ethical requirements, he does not bring on either other competent lawyers to help him or send cases out to others so that they may be properly and expeditiously handled.

         Not amusingly, counsel labeled his third, fourth, and fifth motions for extension of time as his third motion for an extension of time, as though mislabeling would successfully deceive. Rebirth Christian Academy Day Care, Inc. v. Brizzi, 835 F.3d 742 (7th Cir. 2016). It did not. A litigant cannot use phrases and descriptions any way he pleases, and certainly not to fool the court. Blue Cross Blue Shield of Massachusetts, Inc. v. BCS Ins. Co., 2011 WL 6382203, 2 (7th Cir. 2011).

         And, in each case, Mr. Rose filed his motion for an extension of time well after the brief had been due, thereby in effect knowingly creating a situation in which he could obtain an extension by default. This is an all too common practice that courts generally do not tolerate once, let alone repeatedly, especially when the excuses are almost always the same and could have been remedied and avoided. See page 5, n.1. See e.g., Connecticut Gen. Life Ins. Co. v. Chicago Title & Trust Co., 690 F.2d 115, 115 (7th Cir. 1982)(Posner, J.); Hare v. Comcast Cable Commc'ns Mgmt., LLC, 564 F.App'x 23, 24 (4th Cir. 2014); In re Energy Res. Co., Inc., 82 B.R. 172, 173 (D. Mass. 1987); G & G Closed Circuit Events, LLC v. Castillo, 2016 WL 3551634, at *7 (N.D. Ill. 2016).

         Coming from a small firm I am not unsympathetic to claims by an attorney that make timely performance difficult. But, Mr. Rose continuously has used the excuse of the size of his practice as a basis for year after year flouting the rules by which all other lawyers have to live. There aren't special rules and special deadlines for sole practitioners. See Harrington v. City of Chicago, 433 F.3d 542, 548 (7th Cir. 2006). “[N]eglect due to a busy schedule is not excusable, ” and there is a “limit to the quantity of cases a sole practitioner can professionally handle by himself at any one point in time.” Id. See also G & G Closed Circuit Events, LLC v. Castillo, 2016 WL 3551634, at *8 (N.D. Ill. 2016). The Rules have equal application to sole practitioners. Netsphere, Inc. v. Baron, 2013 WL 12128675, at *2 (N.D. Tex. 2013); Davis v. Catholic Univ. of Am., 1999 WL 813663, at *5 (D.D.C. 1999); Bello v. Bank of Am. Corp., 320 F.Supp.2d 341, 348 (D. Md. 2004).[2]

         There comes a point where certain excuses cannot be accepted as a justification for an attorney's behavior - especially when those excuses are repeated over a long period of years, no attempt is made to mitigate the situation, and no meaningful curative action is taken. Cf. Harrington, 433 F.3d at 548. “Common sense dictates that there is a limit to the quantity of cases a sole practitioner can professionally handle by himself at any one point in time. Although [counsel] expressed at oral argument that he had done the best he could in this case, he appears to have exceeded that limit here.” Id.

         The excuses offered in this case are the same or very similar to the ones Mr. Rose continually advances and which he has been told continually he cannot rely on. Despite being told that he must do something his situation, the problems continue to persist and to mount. Indeed, we know of no lawyer who has been accorded as much leeway and courtesies as has Mr. Rose. All to no avail, despite warnings and pleas and threats. See, e.g., the Orders in Filipos v. Colvin, 15 C 7719 [Dkt. #21] (rule to show cause why Mr. Rose should not be held in civil contempt and sanctioned for failure to follow court order); Goznikar v. Colvin, 11 C 7339 [Dkt. #35]; Mosteller v. Astrue, 11 C 1640 [Dkt. #41]. These are but a handful of the Orders that have been issued by magistrate judges of this court in Social Security cases. See, also., Ackerman v. Astrue, No. 11 C 8985; Kelly v. Astrue, No. 12 C 5580; Gates v. Astrue, No. 12 C 458; LaGrand v. Astrue, No. 12 C 6264. In each of the representative cases we have discussed, Mr. Rose had basically the same excuses for his acts and omissions as he raises here. And in each, his reasons for non or flawed performance have been the same.

         In hindsight, granting Mr. Rose's repeated requests for extensions in this case seems ill-advised. But I am generally disinclined to deny motions for extension in Social Security disability cases, even when excuses mount and seem flimsy, because harm may befall the client, as opposed to counsel. But a line has been crossed in this case - if it has not been crossed long ago - and granting counsel's extremely late fee ...

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