Eckberg v. Astrue

Filing 41

ORDER granting 35 parties' Joint Stipulation to Attorney's Fees under the Equal Access to Justice Act. Plaintiff is awarded attorney's fees in the amount of $14,750. This payment shall be made payable to Plaintiff and shall be paid by the Defendant. Signed by Senior Judge Stephen M McNamee on 7/22/15.(LSP)

1

WO

2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9
10
11
12
13
14

)
)
)
Plaintiff,
)
)
v.
)
Carolyn W. Colvin, Acting Commissioner)
)
of Social Security,
)
)
Defendant.
)
Kathleen Ann Eckberg,

No. CV-11-537-PHX-SMM

ORDER

15

The Ninth Circuit Court of Appeals has issued its mandate finding in favor of

16

Appellant Eckberg and remanding this case to the Defendant Social Security Administration

17

for further proceedings on an open record. (Doc. 34.) Pending before the Court is the

18

parties’1 Joint Stipulation to Attorney’s Fees under the Equal Access to Justice Act. (Doc.

19

39.) The parties stipulate to an award of fees to Plaintiff’s counsel in the amount of $14,750,

20

covering litigation in this Court and the Ninth Circuit Court of Appeals. The amount

21

compensates Plaintiff’s counsel for some, but not all, of the time expended in these forums.

22

EAJA

23

The Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d)(1)(A), provides, as

24
25
26
27

follows:
Except as otherwise specifically provided by statute, a court shall award to a
prevailing party other than the United States fees and other expenses, in
addition to any costs awarded pursuant to subsection (a), incurred by that party
in any civil action (other than cases sounding in tort), including proceedings

28
1

Pursuant to Fed. R. Civ. P. 25(d)(1), Acting Commissioner Carolyn Colvin is
substituted for former Social Security Commissioner Michael J. Astrue.

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

for judicial review of agency action, brought by or against the United States
in any court having jurisdiction of that action, unless the court finds that the
position of the United States was substantially justified or that special
circumstances make an award unjust.
Id. Under the EAJA, the district court has discretion to award fees for all levels of litigation,
including appellate work in the Ninth Circuit. See Natural Resources Defense Council, Inc.
v. Winter, 543 F.3d 1152, 1163-64 (9th Cir. 2008) (construing the statute and determining
that the statute provides such discretion to the district court). EAJA requires an award of fees
to prevailing parties in civil actions against the United States unless the position of the
United States was substantially justified. The Court construes Defendant’s stipulation to fees
as a concession that the government’s position was not substantially justified, regardless of
Defendant’s argument against such a concession.
Reasonableness of Fees
The Court exercises discretion in awarding fees under EAJA. See Webb v. Ada
County, 195 F.3d 524, 527 (9th Cir. 1999) (district court possesses considerable discretion
in determining the reasonableness of a fee award). The EAJA provides for an upward
adjustment of the $125 rate contained in the statute, based on cost of living increases); see
28 U.S.C. § 2412(d)(2)(A); Sorenson v. Mink, 239 F.3d 1140, 1147-49 (9th Cir. 2001)).
Pursuant to the EAJA and Thangaraja v. Gonzalez, 428 F.3d 870, 876–77 (9th Cir. 2005),
the Court will award Plaintiff’s counsel a cost of living increase for billed hours. Counsel
will be compensated at the requested statutory rate of $180.59 per hour for work performed
in 2011, $184.32 per hour for 2012, $187.02 per hour for 2013, and $190.06 for 2015. (Doc.
37-1 at 5.)
The parties stipulated to a fee for Plaintiff’s counsel in the amount of $14,750, for
33.1 hours of work performed in 2011, 21.5 hours performed in 2012, 38 hours of work
performed in 2013 and 3 hours of work in 2015, totaling 95.6 hours and $17,617.35. (Doc.
37-1). The stipulation of $14,750 represents a reduction of $2,867.35 from the total hours
claimed.
The Court has reviewed counsel’s service itemization worksheets. (Id.) Counsel
-2-

1

included .4 hours of administrative work, which is not compensable. Counsel bills 33.2

2

hours for his district court work and 59 hours for his appellate work. Given the stipulated

3

reduction of $2,867.35, which would be approximately 15 hours of billable work, the Court

4

finds the hours counsel expended and the stipulated fee amount reasonable.

5

In light of Astrue v. Ratliff, 560 U.S. 586, 597-98 (2010), attorney’s fees awarded

6

under EAJA are subject to offset under the Treasury Offset Program, 31 U.S.C. §

7

3716(c)(3)(B), in case Plaintiff has an outstanding federal debt. Therefore, the stipulated

8

attorney’s fee award will be made payable to Plaintiff and not to Plaintiff’s attorney.

9

Accordingly,

10

IT IS HEREBY ORDERED GRANTING the parties’ Joint Stipulation to

11

Attorney’s Fees under the Equal Access to Justice Act. (Doc. 39.) Plaintiff is awarded

12

attorney’s fees in the amount of $14,750. This payment shall be made payable to Plaintiff

13

and shall be paid by the Defendant.

14

DATED this 22nd day of July, 2015.

15
16
17
18
19
20
21
22
23
24
25
26
27
28
-3-