Jeffrey Alan Kinder v. Carolyn W. Colvin

Filing 25

ORDER AWARDING Motion for ATTORNEYS FEES Under Equal Access to Justice Act by Magistrate Judge Charles F. Eick. It is Ordered that Plaintiff is awarded attorney fees under the EAJA in the amount of $4,600. If the Government determines that Plain tiff does not owe a federal debt, then the Government shall cause the payment of the award to be made directly to Barbara Arnold pursuant to the assignment executed by Plaintiff. This award is without prejudice to the rights of Plaintiff and Plaintiff's counsel to seek attorney fees under 42 U.S.C. section 406, if and when appropriate. (sp)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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JEFFREY ALAN KINDER,

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Plaintiff,
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v.
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NANCY A. BERRYHILL, ACTING
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COMMISSIONER OF SOCIAL SECURITY,
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Defendant.
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___________________________________)

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SA CV 16-1608-E

ORDER GRANTING MOTION FOR
ATTORNEY FEES UNDER
EQUAL ACCESS TO JUSTICE ACT

PROCEEDINGS

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On June 21, 2017, counsel for Plaintiff filed a “Motion for Award

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of Attorney’s Fees Pursuant to Equal Access to Justice Act, etc.” (the

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“Motion”).

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Motion.

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award of $4,600 to be paid directly to Plaintiff’s counsel.

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Defendant did not file any timely opposition to the

See Minute Order dated June 21, 2017.

The Motion seeks an

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BACKGROUND

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On August 31, 2016, Plaintiff filed a complaint seeking review of

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the Commissioner’s denial of disability benefits.

The parties

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consented to a Magistrate Judge on October 24, 2016.

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the parties’ cross-motions for summary judgment, the Court remanded

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the matter for further administrative proceedings.

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Opinion and Order of Remand,” filed March 23, 2017.

After reviewing

See “Memorandum

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APPLICABLE LAW

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The Equal Access to Justice Act (“EAJA”) provides:

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Except as otherwise specifically provided by statute, a

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court shall award to a prevailing party other than the

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United States fees and other expenses, in addition to any

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costs awarded . . . , incurred by that party in any civil

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action . . . , including proceedings for judicial review of

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an agency action, brought by or against the United States

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. . . unless the court finds that the position of the United

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States was substantially justified or that special

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circumstances make an award unjust.

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28 U.S.C. § 2412(d)(1)(A) (emphasis added).

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expenses” include “reasonable attorney fees.”

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2412(d)(2)(A).

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“[F]ees and other
28 U.S.C. §

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“It is the government’s burden to show that its position was

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substantially justified or that special circumstances exist to make

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the award unjust.”

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Cir. 2001).

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or in the main’ — that is, justified to a degree that could satisfy a

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reasonable person.”

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565 (1988)).

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to the appropriateness of the contested action,” the Government’s

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position is substantially justified.

Gutierrez v. Barnhart, 274 F.3d 1255, 1258 (9th

“‘Substantially justified’ means “‘justified in substance

Id. (quoting Pierce v. Underwood, 487 U.S. 552,

In other words, where “reasonable people could differ as

Pierce v. Underwood, 487 U.S. at

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565 (internal brackets, quotations and citations omitted).

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Substantial justification requires that the Government’s position have

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a “reasonable basis both in law and in fact.”

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Commissioner, I.N.S. v. Jean, 496 U.S. 154, 158 n.6 (1990); Thangaraja

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v. Gonzales, 428 F.3d 870, 874 (9th Cir. 2005) (substantial

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justification is equated with reasonableness).

Id. at 565-66; see also

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In viewing the conduct of the Government, “the remedial purpose

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of the EAJA is best served by considering the totality of the

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circumstances.”

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Dist., 849 F.2d 1246, 1248 (9th Cir. 1988) (citation omitted).

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Court must examine both the Government’s pre-litigation and litigation

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positions.

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1998) (“The government’s position must be ‘substantially justified’ at

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each stage of the proceedings.”) (quotations and citation omitted).

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In the Social Security context, the Government’s position includes

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“both the government’s litigation position and the underlying agency

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action giving rise to the civil action.”

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867, 870-72 (9th Cir. 2013); see also 28 U.S.C. § 2412(d)(2)(D)

United States v. Gavilan Joint Community College
The

Id.; see Corbin v. Apfel, 149 F.3d 1051, 1052 (9th Cir.

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Meier v. Colvin, 727 F.3d

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(“‘position of the United States’ means, in addition to the position

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taken by the United States in the civil action, the action or failure

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to act by the agency upon which the civil action is based . . .”).

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evaluating the reasonableness of the Government’s position, the Court

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must “focus on the remand issue[s] rather than the ultimate disability

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determination.”

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2002).

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Administration, the ALJ’s decision is the “action or failure to act by

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the agency upon which the civil action is based.”

In

Lewis v. Barnhart, 281 F.3d 1081, 1086 (9th Cir.

When the ALJ’s decision is the final decision of the

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727 F.3d at 870-72.

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decision reviewed for substantial justification.

Meier v. Colvin,

In this circumstance, the ALJ’s decision is the
Id.

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DISCUSSION

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For the reasons set forth in the “Memorandum Opinion and Order of

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Remand,” filed March 23, 2017, the Government’s position was not

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substantially justified.

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unjust.

No special circumstances would make an award

The fees sought are reasonable.

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An EAJA fee award generally is payable to the prevailing litigant

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rather than to the prevailing litigant’s counsel.

See Astrue v.

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Ratliff, 560 U.S. 586, 596-97 (2010).

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EAJA fees to his counsel.

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of EAJA Fee,” appended to the Motion.

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government debt that qualifies for an offset, payment may be made in

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the name of Plaintiff’s counsel when the Government waives the Anti-

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Assignment Act, 31 U.S.C. section 3727.

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F.3d 1161, 1169-70 (9th Cir. 2015) (to the extent the Anti-Assignment

However, Plaintiff assigned his

See “Plaintiff’s Affidavit and Assignment

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If Plaintiff does not owe a

See United States v. Kim, 806

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Act may apply to EAJA fee awards, “[i]t is well established . . . that

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the Government can waive coverage of the Anti-Assignment Acts.”)

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(citation omitted).

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The Court construes the Government’s failure to file timely

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opposition to the Motion as a waiver of the Anti-Assignment Act.

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fees therefore are payable to Plaintiff’s counsel, as Plaintiff’s

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assignee, absent offset by reason of any outstanding federal

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indebtedness owing from Plaintiff under 31 U.S.C. section 3716.

The

See,

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e.g., Fambrough v. Commissioner of Social Security, 2016 WL 500605, at

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*5 (E.D. Cal. Feb. 9, 2016) (finding that payment could be made

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directly to counsel if Plaintiff does not owe a government debt and

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the Government waives the Anti-Assignment Act’s requirements; citing

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district court cases finding same); Yesipovich v. Colvin, 2015 WL

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5675869, at *8 (N.D. Cal. Sept. 28, 2015) (same).

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CONCLUSION AND ORDER

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For all of the foregoing reasons, IT IS ORDERED that Plaintiff is

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awarded attorney fees under the EAJA in the amount of $4,600.

If the

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Government determines that Plaintiff does not owe a federal debt, then

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the Government shall cause the payment of the award to be made

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directly to Barbara Arnold pursuant to the assignment executed by

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Plaintiff.

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This award is without prejudice to the rights of Plaintiff

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and Plaintiff’s counsel to seek attorney fees under 42 U.S.C. section

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406, if and when appropriate.

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DATED: July 27, 2017.

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/s/
CHARLES F. EICK
UNITED STATES MAGISTRATE JUDGE

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