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