Doran v. Astrue

Filing 37

ORDER granting 30 Plaintiff's Motion for Award of Attorney Fees to the extent that Plaintiff is awarded $4,500.00 in attorney's fees to be mailed to Plaintiff's counsel, Jeremy Pekas. Signed by Magistrate Judge Lawrence O Anderson on 3/7/12.(TLJ)

Download PDF
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 15 ) ) ) Plaintiff, ) ) v. ) ) Michael J. Astrue, Commissioner of the) ) Social Security Administration, ) ) Defendant. ) ) Thomas Doran No. CV-10-8155-PCT (LOA) ORDER 16 This matter is before the Court on Plaintiff’s Motion for Award of Attorney’s Fees 17 Pursuant to the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412. (Doc. 30) In his 18 response, Defendant, the Commissioner of the Social Security Administration (the 19 “Commissioner”), advises that the parties have agreed that an award of attorneys’ fees in the 20 amount of $ 4,500.00 is reasonable. (Doc. 35) However, Defendant opposes the request that 21 the fees be paid to Plaintiff’s counsel, rather than to Plaintiff. 22 I. Background 23 In October 2006, Plaintiff, applied for Disability Insurance Benefits and Social 24 Security Income pursuant to 42 U.S.C. § 401-34 and §¶ 1381-83f. Plaintiff’s requests were 25 denied initially and on reconsideration. Thereafter, on Plaintiff’s request, a hearing was held 26 before Administrative Law Judge (“ALJ”), Joan G. Knight. The ALJ found Plaintiff was not 27 disabled within the meaning of the Social Security Act. This decision became the final 28 decision of the Commissioner of Social Security when the Social Security Appeals Council 1 denied Plaintiff’s request for review. Plaintiff sought review by this Court. On September 2 12, 2011, the Court entered an order remanding this matter for further proceedings, and the 3 Clerk of Court entered judgment. (Docs. 28, 29) Plaintiff now seeks an award of attorney’s 4 fees under the EAJA. 5 II. Attorney’s Fees under the EAJA 6 In any action brought by or against the United States, the EAJA provides that “a court 7 shall award to a prevailing party other than the United States fees and other expenses . . . 8 unless the court finds that the position of the United States was substantially justified.” 28 9 U.S.C. § 2412(d)(1)(A). The EAJA creates a presumption that fees will be awarded to the 10 prevailing party unless the Government establishes that its position was “substantially 11 justified.” See Thomas v. Peterson, 841 F.2d 332, 335 (9th Cir. 1988). Substantially justified 12 means “justified in substance or in the main — that is, justified to a degree that could satisfy 13 a reasonable person.” Pierce v. Underwood, 487 U.S. 552, 565 (1988) (internal citations 14 omitted). A substantially justified position must have a reasonable basis both in law and fact. 15 Gutierrez v. Barnhart, 274 F.3d 1255,1258 (9th Cir. 2001). 16 The Government bears the burden of establishing substantial justification. Gutierrez, 17 at 1258. In determining whether the Government’s position was substantially justified the 18 court considers both the Government’s position during the litigation and “the action or failure 19 to act by the agency upon which the civil action is based.” 28 U.S.C. § 2412(d)(2)(D). Thus, 20 the court considers: “first, whether the government was substantially justified in taking its 21 original action; and second, whether the government was substantially justified in defending 22 the validity of the action in court.” Gutierrez, 274 F.3d at 1258 (citation omitted). 23 III. Analysis 24 After Plaintiff filed his motion for attorney’s fees, Defendant contacted Plaintiff’s 25 counsel to settle the issue of fees. Defendant’s counsel advises the Court that Defendant 26 has agreed to pay Plaintiff $4,500.00 in EAJA fees. (Doc. 35) In his Reply, Plaintiff 27 confirms that the parties have agreed that an award of $4,500.00 in EAJA fees is 28 -2- 1 reasonable. (Doc. 36) The Court finds that the hours worked, hourly rates, and stipulated 2 the amount of attorney’s fees are reasonable. 3 In his motion, Plaintiff requests that the Court order that “any check be sent to 4 Plaintiff’s counsel’s office.” (Doc. 31) Defendant opposes that request and argues that 5 the attorney’s fees are payable to Plaintiff, not his counsel. (Doc. 35) In Astrue v. Ratliff, 6 560 U.S. ___, 130 S.Ct. 2521 (2010), the United States Supreme Court held that EAJA 7 fees are payable to the prevailing party, not his attorney. Although Plaintiff recognizes 8 Ratliff’s holding, Plaintiff states that the fee agreement between Plaintiff and counsel 9 provides that any EAJA fees are assigned to Plaintiff’s counsel. Plaintiff states that, 10 “while the EAJA fees are payable to Doran, it is respectfully submitted that this Court 11 should order any check sent to Plaintiff’s counsel’s office.” (Doc. 31) Plaintiff does not 12 request that the check be made payable to Plaintiff’s counsel. 13 As previously stated, the Court in Ratliff held that EAJA fees are payable to the 14 prevailing party, not his attorney. 130 S.Ct. at 2525. In so holding, the Court noted the 15 “practical reality that attorneys are the beneficiaries and, almost always, the ultimate 16 recipients of the fees that the statute awards to the ‘prevailing part[ies]’” because of 17 “nonstatutory (contractual and other assignment-based) rights that typically confer upon 18 the attorney the entitlement to payment of the fees award the statute confers on the 19 prevailing litigant.” Id. at 2529 (quoting Venegas v. Mitchell, 495 U.S. 82, 86 (1990)). 20 The Court further noted that such “arrangements would be unnecessary if . . . statutory 21 fees language like that in . . . EAJA provide[d] attorneys with a statutory right to direct 22 payment of awards.” Id. Thus, although Ratliff clarifies that the EAJA awards attorney’s 23 fees directly to the prevailing party - in this case Plaintiff - it does not preclude the 24 contractual assignment of the fee award to Plaintiff’s counsel. However, “the private 25 contractual arrangement between [Plaintiff] and his counsel [is] a collateral matter that 26 the [Court] need not address when considering the EAJA fees motion.” Brown v. Astrue, 27 271 Fed.Appx. 741, 744 (10th Cir. 2008). 28 -3- 1 The Ninth Circuit has noted that “Ratliff counsels that in the absence of explicit 2 instructions from Congress awarding fees to the attorney, direct payment to the attorney 3 should not be presumed.” U.S. v. $186,416.00 in U.S. Currency, 642 F.3d 753 (9th Cir. 4 2011) (citing Ratliff, 130 S.Ct. at 2527). In view of Ratliff, the Court declines to order 5 direct payment to Plaintiff’s counsel. However, the Court will direct Defendant to mail 6 the check to the office of Plaintiff’s counsel. 7 In accordance with the foregoing, 8 IT IS ORDERED that Plaintiff’s Motion for Award of Attorney’s Fees Pursuant 9 to the Equal Access to Justice Act, doc. 30, is GRANTED to the extent that Plaintiff is 10 awarded $4,500.00 in attorney’s fees to be mailed to Plaintiff’s counsel, Jeremy Pekas, 11 1940 East Camelback Road, Suite 150, Phoenix, AZ 85016. 12 Dated this 7th day of March, 2012. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -4-

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?