Cotton v. Colvin

Filing 22

ORDER granting 16 Motion for Attorney Fees under the EAJA and Paul Cotton is awarded $4,971.14 in attorney's fees. Signed by Judge David G Campbell on 10/20/2017.(TCA)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Paul Mitchel Cotton,
Plaintiff,

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ORDER

v.

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No. CV-16-02230-PHX-DGC

Nancy A. Berryhill, Acting Commissioner
of the Social Security Administration

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Defendant.

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Paul Mitchel Cotton has filed a motion for attorney’s fees pursuant to the Equal

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Access to Justice Act (“EAJA”), 28 U.S.C. §§ 2412 et. seq. Doc. 16. No party requests

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oral argument, and the motion is fully briefed. Docs. 17, 21. For reasons set forth below,

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the motion will be granted.

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I.

Background.

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Cotton brought this action for judicial review pursuant to 42 U.S.C. § 405(g) after

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an administrative law judge (“ALJ”) denied his application for disability benefits. Doc. 1.

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The Court vacated the ALJ’s decision and remanded for further proceedings. Doc. 13.

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Cotton has now filed a motion for $4,971.14 in attorney’s fees under the EAJA. Doc 16.

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In the fee request, Cotton’s attorney, Rodney Salmi, discloses that “[a]t the present

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time . . . Cotton is believed to be homeless, so there is no address to which to send EAJA

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fees awarded.” Doc. 16-3 at 10. While Salmi has hired a private investigator to locate

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Cotton, he requests that any award of fees be mailed to him, where it will be held in trust

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for Cotton until he is located. Id.

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II.

Legal Standard.

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Under the EAJA, the Court must award attorney’s fees to a prevailing party

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unless the United States shows that its position was “substantially justified or that special

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circumstances make an award unjust.” 28 U.S.C. § 2412(d)(1)(A); see Gutierrez v.

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Barnhart, 274 F.3d 1255, 1258 (9th Cir. 2001); Flores v. Shalala, 49 F.3d 562, 567 (9th

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Cir. 1995) (“The EAJA creates a presumption that fees will be awarded to prevailing

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parties.”). In this case, Cotton is a prevailing party because the final administrative

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judgment denying his application for benefits was reversed and remanded for further

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consideration. Gutierrez, 274 F.3d at 1257 (“An applicant for disability benefits becomes

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a prevailing party for purposes of the EAJA if the denial of her benefits is reversed and

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remanded regardless of whether disability benefits ultimately are awarded.”).

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III.

Special Circumstances.

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The government argues that Cotton should be denied attorney’s fees under the

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special circumstances exception. This exception “gives ‘the court discretion to deny

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awards where equitable considerations dictate an award should not be made.’”

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Scarborough v. Principi, 541 U.S. 401, 423 (2004) (quoting H.R. Rep. No. 96-1418,

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at 11 (1980)). The government bears the burden of proving that special circumstances

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warrant a denial of attorney’s fees under the EAJA. Gutierrez, 274 F.3d at 1258.

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The government contends that an award of fees would be unjust because Salmi

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did not obtain Cotton’s consent before appealing the denial of social security benefits to

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this Court.

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interpreting the fee-shifting provision of 42 U.S.C. § 1988 and holding that district courts

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should exclude from fee calculations hours not “reasonably expended.” 461 U.S. 424,

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434 (1983) (citation omitted).

Doc. 17 at 5-6.

The government cites Hensley v. Eckerhart, a case

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As an initial matter, the government’s argument assumes that facts unrelated to the

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substantive issues in the case can constitute special circumstances. Some circuits appear

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to have embraced this position, see, e.g., Oguachuba v. I.N.S., 706 F.2d 93, 99 (2d

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Cir. 1983), but the Ninth Circuit has not. The committee reports accompanying the

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EAJA describe the special circumstances exception as a “safety valve” intended to ensure

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that the government is not deterred from advancing good faith but novel interpretations of

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the law. H.R. Rep. No. 96-1418, at 11. The Ninth Circuit has suggested that this

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legislative history limits the exception to the substantive issues of the case. Grason Elec.

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Co. v. N.L.R.B., 951 F.2d 1100, 1103 (9th Cir. 1991); see, e.g., Gutierrez, 274 F.3d at

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1262 (finding no special circumstances where the litigated matter “did not involve

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contested interpretations of an ambiguous legal rule”); Animal Lovers Volunteer Ass’n v.

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Carlucci, 867 F.2d 1224, 1226 (9th Cir. 1989) (finding no special circumstances because

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“[t]he litigation on the merits did not involve a close or novel question”); United States v.

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Gavilan Joint Cmty. Coll. Dist., 849 F.2d 1246, 1249 (9th Cir. 1988) (holding that special

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circumstances are present when the government argues “‘a novel but credible extension

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or interpretation of the law,’ an issue on which ‘reasonable minds could differ,’ or an

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‘important and doubtful question[]’”) (citations omitted). But even if the context of a

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case can trigger the special circumstances exception, the Court finds that the government

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has not met its burden of showing that fees should be denied here.

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The crux of the government’s argument is that Salmi appealed Cotton’s denial of

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social security benefits without Cotton’s consent. But Salmi has provided the Court with

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an affidavit establishing that he was indeed in contact with Cotton when he filed the

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appeal. Doc. 21-1. Although Cotton did not sign a formal fee agreement with Salmi, it

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was Salmi’s understanding that Cotton wished to proceed with the appeal. Id.; cf. Roe v.

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Flores-Ortega, 528 U.S. 470, 485 (2000) (citing Rodriquez v. United States, 395 U.S.

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327 (1969)) (explaining that when a defendant “objectively indicate[s] his intent to

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appeal[,]” it is unreasonable for counsel not to appeal). In addition, “the clearly stated

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objective of the EAJA is to eliminate financial disincentives for those who would defend

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against unjustified governmental action.”

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2007) (citation omitted). Cotton, a homeless man existing on the fringes of society, is the

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type of exceptionally vulnerable person the EAJA was intended to serve. Denying him

Li v. Keisler, 505 F.3d 913, 919 (9th Cir.

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attorney’s fees because he lacks a phone or computer with which to readily communicate

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with his attorney would be inconsistent with the EAJA’s purpose.

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Finally, the government’s reliance on Hensley v. Eckerhart is misplaced. Hensley

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addressed how to determine the size of the fee award – the “lodestar” calculation – under

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the fee-shifting provisions of the civil rights statutes, not whether special circumstances

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defeat an award of fees. 461 U.S. at 434-35; see also Fischer v. SJB-P.D. Inc., 214 F.3d

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1115, 1119 n.2 (9th Cir. 2000) (considering the special circumstances exception

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independent from the reasonableness requirement under Hensley). The case provides no

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basis for denying Cotton attorney’s fees.

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IV.

Awarded Fees.

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The parties agree that if the Court awards attorney’s fees under the EAJA, the

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Court must award them to Cotton. See Astrue v. Ratliff, 560 U.S. 586, 586 (2010). But

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the parties disagree on who should hold the fees until Cotton has been located. Salmi

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asks that the fees be mailed to him to be held in trust for Cotton. Doc. 16-3 at 10. The

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government requests that the fees be “mailed to Cotton’s last known address, and, if

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returned, processed by the government, accordingly.” Doc. 17 at 9.

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The Court concludes that the government should hold the fees until Cotton is

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located. The government and Salmi should attempt to notify Cotton of the Court’s fee

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award. If Cotton is located and seeks to collect the fees, the government shall, before

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disbursement to Cotton, notify Salmi so that he may protect his interest in fees he is

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entitled to recover for his work on this case.

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IT IS ORDERED Cotton’s Motion for Attorney’s Fees under the EAJA (Doc. 16)
is granted and Cotton is awarded $4,971.14 in attorney’s fees.
Dated this 20th day of October, 2017.

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