Antunez v. Colvin

Filing 25

*ORDER: IT IS ORDERED that Plaintiff's Motion for an Award of Attorneys' Fees under the EAJA, (Doc. 23 ), is GRANTED to the extent it seeks $6,345.07 in attorneys' fees and costs pursuant to the EAJA. The Motion is DENIED to the extent it requests that the fees be made payable directly to Plaintiff's counsel [see attached Order for details]. Signed by Senior Judge James A Teilborg on 9/13/17.(MAW) *Modified to add WO designation on 9/14/2017 (SLQ).

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WO

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Maria Antunez,

No. CV-16-01072-PHX-JAT

Plaintiff,

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v.

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Commissioner
Administration,

ORDER

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of

Social

Security

Defendant.

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Pending before the Court is Plaintiff Maria Antunez’s Motion for Attorneys’ Fees

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pursuant to the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412, (the “Motion,”

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Doc. 23). Defendant Acting Commissioner of the Social Security Administration (the

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“Commissioner”) has filed her Response, (Doc. 24). The Court now rules on the Motion.

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I.

BACKGROUND

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Plaintiff applied for Social Security disability benefits in October 2012. (Tr. 10).1

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Plaintiff’s applications were denied initially on March 20, 2013 and upon reconsideration

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on August 26, 2013. (Tr. 10). After a hearing held on July 30, 2014, (Tr. 23–43), the

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Administrative Law Judge (the “ALJ”) denied Plaintiff’s applications. (Tr. 17).

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On April 15, 2016, Plaintiff commenced suit pursuant to 42 U.S.C. §§ 405(g) and

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1383(c)(3) seeking a review of the ALJ’s denial of her applications for disability

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insurance benefits and supplemental security income. (Doc. 1 at 1). This Court held that

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Citations to “Tr.” are to the certified administrative transcript of record.
(Doc. 13).

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the ALJ committed harmful error by concluding that Plaintiff could perform past work.

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(Doc. 21 at 2). As a result, this Court reversed and remanded the ALJ’s decision for “a

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new administrative hearing, additional vocational expert testimony, and a new ALJ

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decision” addressing the ALJ’s errors related to Plaintiff’s past work. (Id. at 3–4). This

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Court did not reach a decision on Plaintiff’s two additional claims of error. (Id. at 3).

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After the reversal, Plaintiff filed the current Motion requesting $6,345.07 in

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attorneys’ fees and costs under the EAJA. (Doc. 23). The Commissioner’s Response

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states that she “finds no basis for objection” and “defer[s] to the Court’s assessment of

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the matter.” (Doc. 24 at 1).

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II.

LEGAL STANDARD

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The EAJA allows “a prevailing party other than the United States fees and other

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expenses . . . incurred by that party in any civil action . . . unless the court finds that the

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position of the United States was substantially justified or that special circumstances

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make an award unjust.” 28 U.S.C. § 2412(d)(1)(A) (2012). An applicant for disability

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benefits becomes a prevailing party for the purposes of the EAJA if the denial of her

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benefits is reversed and remanded regardless of whether disability benefits are ultimately

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awarded. Shalala v. Schaefer, 509 U.S. 292, 300–02 (1993).

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The “position of the United States” includes both its litigating position and the

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“action or failure to act by the agency upon which the civil action is based.”

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28 U.S.C. § 2412(d)(2)(D). To be substantially justified, a position must be “justified in

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substance or in the main–that is, justified to a degree that could satisfy a reasonable

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person.” Pierce v. Underwood, 487 U.S. 552, 565 (1988) (holding that “substantially

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justified” means having a reasonable basis both in law and fact). In EAJA actions, the

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government bears the burden of proving that its position was substantially justified.

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Gonzales v. Free Speech Coalition, 408 F.3d 613, 618 (9th Cir. 2005).

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When analyzing the government’s position for substantial justification, the Court’s

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inquiry should be focused on the issue that was the basis for remand and not the merits of

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Plaintiff’s claim in its entirety or the ultimate disability determination. Flores v. Shalala,

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49 F.3d 562, 569 (9th Cir. 2008); see also Corbin v. Apfel, 149 F.3d 1051, 1052

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(9th Cir. 1998) (“The government’s position must be substantially justified at each stage

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of the proceedings.” (citation and quotation marks omitted)).

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III.

ANALYSIS

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Plaintiff requests attorneys’ and paralegals’ fees of $6,328.45, and costs of $16.62.

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(Doc. 23 at 2). Plaintiff also asks that “fees be made payable to the attorney.” (Id.). The

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Commissioner does not oppose Plaintiff’s Motion. (Doc. 24).

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The Court could “treat the government’s non-opposition as constituting a failure to

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offer a basis for finding of substantial justification and, thus, a failure to carry its burden

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of proof.” Gwaduri v. INS, 362 F.3d 1144, 1146 (9th Cir. 2004). However, the Court

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should exercise discretion in awarding fees under EAJA and “has an independent

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obligation to ensure that the request is reasonable.” Keyser v. Astrue, No. 08-1268-CL,

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2012 WL 78461, at *3 (D. Or. Jan. 10, 2012); see also Webb v. Ada Cty.,

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195 F.3d 524, 527 (9th Cir. 1999) (recognizing that a district court possesses

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“considerable discretion” in determining the reasonableness of a fee award). Accordingly,

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the Court reviews both the reasonableness of Plaintiff’s request and whether Plaintiff’s

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counsel should receive the costs and fees directly.

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A.

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Plaintiff claims that an EAJA award is available as: (1) Plaintiff’s net worth did

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not exceed $2,000,000 at the time the action was filed; (2) Plaintiff was a “prevailing

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party” in a case against the U.S. Government; and (3) the position of the United States

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was not substantially justified. (Doc. 23 at 2). Because the Commissioner does not argue

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that her position was substantially justified, the Court concludes that Plaintiff is entitled

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to all reasonable attorneys’ fees and need only analyze whether Plaintiff’s requested

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attorneys’ fees are reasonable. See Cudia v. Astrue, No. 2:08-cv-01676 KJN,

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2011 WL 6780907, at *8 (E.D. Cal. Dec. 27, 2011).

Attorneys’ Fees & Costs

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Plaintiff requests $5,568.45 for 28.9 hours of attorney work, $760.00 for 7.6 hours

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of paralegal work, and $16.62 in costs, for a total award of $6,345.07. (See Doc. 23-1

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at 2–3). Courts within the Ninth Circuit have “recognize[d] a range of 20–40 hours to be

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‘a reasonable amount of time to spend on a social security disability case that does not

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present

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2012 WL 3144041, at *2 (D. Or. June 15, 2012) (quoting Harden v. Comm’r Soc. Sec.

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Admin., 497 F. Supp. 2d 1214, 1215–16 (D. Or. 2007)). Here, Plaintiff’s requested hours

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fall within the spectrum of reasonableness. Further, the Court’s review of the attorneys’

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ledger reveals that Plaintiff’s counsel did not spend an unreasonable amount of time on

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any particular task while preparing Plaintiff’s case. (See Doc. 23-2). Accordingly, the

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Court awards attorneys’ fees and costs in the amount of $6,345.07.

particular

difficulty.’”

Syas

v.

Astrue,

No.

03:10-cv-06391-HU,

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B.

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Plaintiff also motions for this Court to award attorneys’ fees and costs totaling

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$6,345.07 directly to Plaintiff’s counsel under 28 U.S.C. § 2412. (See Doc. 23 at 2). The

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record includes an affidavit from Plaintiff asserting that she “hereby agree[s] to waive

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direct payment of the EAJA fees and assign said fees to be paid directly to my attorney.”

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(Doc. 23-6 at 2).

To Whom Is Award Paid

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“The fact that the [EAJA] awards to the prevailing party fees in which her attorney

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may have a beneficial interest or a contractual right does not,” however, “establish that

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the statute ‘awards’ the fees directly to the attorney.” Astrue v. Ratliff, 560 U.S. 586, 593

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(2010). Instead, the EAJA “‘awards’ the fees to the litigant, and thus subjects them to a

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federal administrative offset if the litigant has outstanding federal debts.” Id. Here,

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Plaintiff agreed to assign all rights to any EAJA fee award to her counsel. (Doc. 23-6

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at 2).

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Nonetheless, the Anti-Assignment Act (“the Act”) forbids the assignment of

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claims against the United States unless certain requirements are satisfied.

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31 U.S.C. § 3727 (2012). Namely, an assignment is permitted only: (1) “after a claim is

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allowed”; (2) when “the amount of the claim is decided”; and (3) when “a warrant for

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payment of the claim has been issued.” Id. § 3727(b). In this case, Plaintiff’s assignment

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was executed on April 8, 2016, well before any EAJA claim was allowed or the amount

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decided. (Doc. 23-6 at 2). Because the assignment does not meet the Act’s requirements,

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the Court concludes that the assignment is invalid as contrary to the Act. In any event, the

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determination of whether to pay Plaintiff’s counsel directly “must be made by the

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Commissioner after confirming that Plaintiff has assigned her right to fees and does not

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owe a debt that is subject to offset under the Treasury Offset Program.” Zamora v.

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Colvin, No. CV-13-01970-PHX-DGC, 2014 WL 4388537, at *2 (D. Ariz. Sept. 5, 2014)

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(emphasis added) (citing Ratliff, 560 U.S. at 594). Consequently, the Court will deny

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Plaintiff’s request for the EAJA fees to be made payable directly to her counsel.

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IV.

CONCLUSION

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Based on the foregoing,

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IT IS ORDERED that Plaintiff’s Motion for an Award of Attorneys’ Fees under

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the EAJA, (Doc. 23), is GRANTED to the extent it seeks $6,345.07 in attorneys’ fees

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and costs pursuant to the EAJA. The Motion is DENIED to the extent it requests that the

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fees be made payable directly to Plaintiff’s counsel.

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IT IS FURTHER ORDERED that this award shall be payable directly to

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Plaintiff and is subject to offset to satisfy any pre-existing debt that Plaintiff owes the

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United States pursuant to Ratliff, 560 U.S. 586.

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Dated this 13th day of September, 2017.

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