Michael L. Hill v. Carolyn W. Colvin

Filing 26

MEMORANDUM ORDER and Order GRANTING Plaintiff's Motion for EAJA Fees and Costs 23 by Magistrate Judge Douglas F. McCormick: IT IS THEREFORE ORDERED AS FOLLOWS: (1) Plaintiff's EAJA Petition is GRANTED; (2) Plaintiff is awarded EAJA fees in the amount of $4,733.76; and (3) the Commissioner shall pay such amounts, subject to any offset to which the government legally is entitled, directly to Plaintiff's counsel. See document for further information. (lwag)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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WESTERN DIVISION

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MICHAEL L. HILL,
Plaintiff,

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v.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.

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Case No. CV 14-05770-DFM
MEMORANDUM OPINION AND
ORDER GRANTING PLANTIFF’S
MOTION FOR EAJA FEES AND
COSTS

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I.

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INTRODUCTION

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On April 6, 2015, the Court approved the parties’ stipulation to

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voluntary remand and remanded the case for further administrative

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proceedings. Dkt. 20. On July 23, 2015, Plaintiff filed a petition for attorney

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fees, costs, and expenses under the Equal Access to Justice Act (“EAJA”), 28

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U.S.C. § 2412. Dkt. 23 (“Petition”). Plaintiff seeks an award of $3,973.52 in

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attorney’s fees based on 18.6 hours of attorney time and 3.2 hours of paralegal

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time. Petition at 2-3. The Commissioner opposes Plaintiff’s application for

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attorney’s fees, arguing that special circumstances make an award of EAJA

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fees unjust. Dkt. 24 (“Opposition”). On July 29, 2015, Plaintiff filed a reply.

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Dkt. 25 (“Reply”). Plaintiff’s reply included a request for an additional four

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hours of attorney time for preparing the reply, bringing Plaintiff’s total request

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to $4,733.76. Id. at 11.
Having considered Plaintiff’s petition, the Commissioner’s opposition,

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and Plaintiff’s reply, as well as the records and pleadings, the Court finds that

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no special circumstances exist that warrant the denial of EAJA fees. Thus,

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Plaintiff is entitled to an award of reasonable attorney’s fees in the amount of

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$4,733.76.

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II.

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DISCUSSION

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A.

Plaintiff Is Entitled to Attorney’s Fees Because No Special

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Circumstances Exist That Make An Award Unjust

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The Commissioner contends that special circumstances make an award

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of fees unjust. Specifically, the Commissioner argues that (1) Plaintiff’s counsel

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falsely implied that he attempted to settle the fees issue before filing the

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Petition; (2) Plaintiff received two extensions to submit Plaintiff’s portion of

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the joint stipulation and then missed the deadline by nine days; and (3)

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Plaintiff failed to raise the issue that compelled the Commissioner to stipulate

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to voluntary remand. Opposition at 3-6.

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EAJA provides that a court shall award reasonable attorney’s fees, costs,

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and other expenses to the prevailing party “unless the court finds that the

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position of the United States was substantially justified or that special

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

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Pierce v. Underwood, 487 U.S. 552, 559 (1988); Lewis v. Barnhart, 281 F.3d

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1081, 1083 (9th Cir. 2002). “It is the government’s burden to show that its

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position was substantially justified or that special circumstances exist to make

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an award unjust.” Gutierrez v. Barnhart, 274 F.3d 1255, 1258 (9th Cir. 2001).
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First, the Commissioner contends that Plaintiff’s counsel’s “misleading

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lack of candor” is a special circumstance making an award of EAJA fees

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unjust, citing the fact that counsel did not offer to settle this fee dispute until

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after the Petition was filed. Opposition at 3-4. The Court disagrees. As an

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initial matter, the Court’s case management order does not make settlement

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discussions mandatory. Dkt. 7 at 3 (“The parties are encouraged to engage in

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settlement discussions at any time during the pendency of the action, but such

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discussions are not mandatory.”). More importantly, as Plaintiff points out, the

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Court’s case management order contemplates that settlement discussions about

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fees may take place after a petition is filed rather than before. Id. at 8-9. As a

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result, nothing in Plaintiff’s counsel’s actions constitutes a special circumstance

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that would make an award of EAJA fees unjust.

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Next, the Commissioner argues that an award of fees would be unjust

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because Plaintiff obtained two extensions to submit Plaintiff’s portion of the

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joint stipulation and even then missed the deadline by nine days. Opposition at

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4-5. But requests for extensions of time are common in many cases, including

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Social Security disability appeals, and often benefit both parties, as

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demonstrated by the fact that the Commissioner stipulated to both requests.

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The fact that at least one of the extensions appears to have been related to the

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terminal illness of Plaintiff’s counsel’s spouse makes the Commissioner’s

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argument even weaker. And while the Court does not condone counsel’s

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failure to submit Plaintiff’s portion of the joint stipulation by the extended

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deadline, the Commissioner does not explain how that nine-day delay itself

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would make an award of fees unjust. As a result, the Court is not persuaded

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that the extensions and missed deadline amount to a special circumstance

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warranting a denial of the Petition.

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Last, the Commissioner also claims that Plaintiff’s portion of the joint
stipulation did not identify the dispositive issue that compelled the
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Commissioner to stipulate to a voluntary remand and therefore an award of

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fees would be unjust. Opposition at 6-7. Specifically, the Commissioner

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contends that Plaintiff only argued that the case should be remanded because

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the Administrative Law Judge (“ALJ”) relied on vocational expert (“VE”)

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testimony that conflicted with the Dictionary of Occupational Titles (“DOT”),

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yet the Commissioner was compelled to voluntarily remand because the ALJ

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failed to properly address all the medical evidence of record. Id. at 6. But the

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remand stipulation demonstrates that the Commissioner stipulated to a

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remand to allow the ALJ to “obtain supplemental testimony” from a VE and

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to “ensure that the VE clarifies any conflicts between his or her testimony and

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the information in the [DOT].” Dkt. 20 at 2. It thus appears to the Court that

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Plaintiff’s portion of the joint stipulation raised a dispositive issue. Although

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the stipulation to voluntary remand also required the ALJ to properly address

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all the medical evidence of record, the Court is not persuaded that Plaintiff’s

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failure to raise that issue warrants a denial of EAJA fees.
Accordingly, the Court finds that the Commissioner has failed to show

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that any special circumstance exists to make an award of EAJA fees unjust.

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See Gutierrez, 274 F.3d at 1258. Because the Commissioner does not contest

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either the amount of time expended or counsel’s hourly rate, the Court finds

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that EAJA fees are warranted in the full amount of $4,733.76.

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B.

EAJA Fees May Be Paid Directly to Plaintiff’s Counsel

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Separately, the Commissioner argues that if any EAJA fees are to be

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awarded, the Court should order the fees paid to Plaintiff notwithstanding

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Plaintiff’s assignment of any such fees to her counsel. See Opposition at 7-8.

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Contrary to the government’s argument, Astrue v. Ratliff, 560 U.S. 586 (2010),

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does not hold that plaintiff’s counsel is not a proper payee for an EAJA award.

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Ratliff held that because an EAJA award is payable to the litigant as opposed

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to the litigant’s attorney, it is subject to a government offset to satisfy a pre4

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existing debt owed by the litigant to the United States. Id. at 589 (“We hold

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that [an EAJA] fees award is payable to the litigant and is therefore subject to a

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Government offset to satisfy a pre-existing debt that the litigant owes the

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United States.”). Like this Court, a number of other courts in this district have

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concluded that Ratliff does not preclude direct payment to plaintiff’s counsel

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where there has been a valid assignment, subject to such an offset. See, e.g.,

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Mang v. Colvin, No. 14-904, 2015 WL 5470339, at *2-3 (Sept. 17, 2015). The

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Court will accordingly order payment of fees to Plaintiff’s counsel, subject to

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any offset to which the government is legally entitled.

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III.

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CONCLUSION

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IT IS THEREFORE ORDERED AS FOLLOWS: (1) Plaintiff’s EAJA

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Petition is GRANTED; (2) Plaintiff is awarded EAJA fees in the amount of

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$4,733.76; and (3) the Commissioner shall pay such amounts, subject to any

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offset to which the government legally is entitled, directly to Plaintiff’s counsel.

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Dated: March 4, 2016

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______________________________
DOUGLAS F. McCORMICK
United States Magistrate Judge

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