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)

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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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