Shipp
Filing
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ORDER The motion for attorney fees and costs (Doc. 15) is granted in part as stated above. Plaintiff is awarded attorney fees and court costs in the amount of $1,631.91, payable to Plaintiff. Signed by Judge David G Campbell on 8/25/2011.(KMG)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF ARIZONA
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Joyce Shipp,
Plaintiff,
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vs.
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Michael Astrue, Commissioner of
Social Security Administration
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Defendant.
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No. CV 09-1470 PHX-DGC
ORDER
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This is a civil case challenging a decision of the Social Security Administration
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(“SSA”). Plaintiff filed a complaint seeking judicial review on July 16, 2009. Doc. 1.
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Defendant Commissioner of the SSA filed an answer on October 15, 2009 (Doc. 15) and
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moved for voluntary remand on November 10, 2009 (Doc. 10). This Court remanded the
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case on November 16, 2009. Doc. 12. SSA benefits were awarded to Plaintiff on remand,
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and on June 17, 2011, Defendant accordingly moved for entry of judgment in favor of
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Plaintiff. Doc. 13. Plaintiff’s counsel then moved for attorney fees and court costs under the
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Equal Access to Justice Act (“EAJA”), more specifically 28 U.S.C. § 2412(d)(1)(A).
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Doc. 15. Defendant opposes on several grounds (Doc. 16), and Plaintiff has not filed a
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timely reply. The motion will be granted in part as stated below.
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A.
Timeliness.
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A motion for fees and costs under EAJA must be filed by the prevailing party “within
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30 days of final judgment in the action.” 28 U.S.C. § 2412(d)(1)(B). The Ninth Circuit has
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interpreted the 30-day period as a filing deadline rather than a filing window. See Shalala
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v. Schaefer, 509 U.S. 292, 298 (1993) (“An EAJA application may be filed until 30 days after
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a judgment becomes ‘not appealable’ – i.e., 30 days after the time for appeal has ended.”
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(emphasis added)). In cases where a federal officer is a party, such as here, “the time for
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appeal does not end until 60 days after ‘entry of judgment.’” Id. at 302. Judgment was
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entered in this case on June 28, 2011. Doc. 14. Plaintiff’s motion, filed on July 28, was
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within the 90 day period after entry of judgment and, therefore, timely.
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Defendant argues that he still has time to appeal the judgment, and that the Court
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should stay its decision until the period for filing an appeal has expired – i.e., August 29,
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2011. Doc. 16 at 8-10. Given that Defendant awarded benefits to Plaintiff and itself moved
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for judgment in Plaintiff’s favor, an appeal by Defendant is, to say the least, highly unlikely.
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The Court concludes that it need not wait another week before entering this order.
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B.
Substantial Justification.
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The prevailing party in a civil action challenging a decision of the SSA is entitled to
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fees and other expenses “unless the court finds that the position of the United States was
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substantially justified or that special circumstances make an award unjust.” 28 U.S.C.
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§ 2412(d)(1)(A). For purposes of this provision, “‘position of the United States’ means, in
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addition to the position taken by the United States in the civil action, the action or failure to
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act by the agency upon which the civil action is based; except that fees and expenses may not
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be awarded to a party for any portion of the litigation in which the party has unreasonably
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protracted the proceedings.” § 2412(d)(2)(D). If the prevailing party’s motion for fees and
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costs alleges lack of substantial justification, “[t]he burden of establishing that the position
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of the United States was substantially justified . . . must be shouldered by the Government.”
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Scarborough v. Principi, 541 U.S. 401, 414 (2004) (internal quotation marks and citations
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omitted).
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The motion in this case asserts the existence of a non-existent order of this Court and
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findings not made by this Court. Doc. 15 at 3:18-25. The motion also alleges that the
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position of the United States “in this case,” as opposed to in the agency action prior to
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commencement of this case, was not substantially justified. Id. The Court nonetheless will
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interpret Plaintiff’s challenge as encompassing the agency action on which this case is based
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because Defendant interpreted it as such. See Doc. 16 at 7; cf. Li v. Keisler, 505 F.3d 913,
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919 (9th Cir. 2007) (“[W]e have consistently held that regardless of the government’s
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conduct in the federal court proceedings, unreasonable agency action at any level entitles the
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litigant to EAJA fees.” (emphasis added)).
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The government has not met its burden of showing the position of the United States
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was substantially justified. Defendant argues that SSA’s award of benefits on remand was
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based on new evidence from Plaintiff’s treating physician, and that this fact somehow shows
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that the previous agency decision was substantially justified. The Court does not agree. The
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fact that new evidence was considered on remand does not show that the evidence considered
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before remand was insufficient to support an award of benefits. Moreover, the SSA decision
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on remand expressly states the new evidence is “consistent with the medical evidence as a
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whole and supported by the claimant’s consistent complaints to treating providers, treating
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source opinions, and objective studies.” Id. (emphasis added). Had the new medical
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evidence somehow contradicted previous evidence on which the agency relied, or had the
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agency’s new decision indicated that Plaintiff failed to provide adequate evidence of the
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disability earlier, Defendant may have had at least a colorable argument for substantial
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justification. Defendant has made no such argument, and the Court therefore has no basis
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on which to find that the agency’s initial decision was substantially justified.
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government has failed to satisfy its burden of proof and Plaintiff is entitled to an award of
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fees and costs under the EAJA.
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C.
The
Payment to Counsel.
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The EAJA requires the motion for attorney fees and costs be made by the prevailing
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party and be paid to such party. 28 U.S.C. § 2412(d)(1)(A)-(B); Astrue v. Ratliff, 130 S. Ct.
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2521, 2525-29 (2010). The petitioner here is Plaintiffs’ counsel, and the motion requests
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payment to counsel directly. Doc. 15. Because the motion is styled as “Plaintiff’s
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application” (id. at 1:9-10), however, the Court will treat the motion as being made by both
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Plaintiff and her counsel. The part of the motion requesting payment to counsel will be
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denied. Ratliff, 130 S. Ct. at 2525-29. The Court will direct payment of fees and costs to
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Plaintiff. Id.
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IT IS ORDERED:
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1.
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The motion for attorney fees and costs (Doc. 15) is granted in part as stated
above.
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Plaintiff is awarded attorney fees and court costs in the amount of $1,631.91,
payable to Plaintiff.
DATED this 25th day of August, 2011.
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