Alfaro v. Astrue

Filing 24

ORDER by Judge Edward M. Chen Granting 20 Motion for Attorney Fees (emclc2, COURT STAFF) (Filed on 1/7/2013)

Download PDF
1 2 3 4 5 UNITED STATES DISTRICT COURT 6 NORTHERN DISTRICT OF CALIFORNIA 7 8 MANUEL PEREZ ALFARO, 9 Plaintiff, For the Northern District of California United States District Court 10 11 No. C-12-1999 EMC v. ORDER GRANTING PLAINTIFF’S MOTION FOR ATTORNEY’S FEES MICHAEL J. ASTRUE, Commissioner, Social Security Administration, (Docket No. 20) 12 13 Defendant. ___________________________________/ 14 15 16 I. 17 INTRODUCTION On September 28, 2012, this Court issued an order by stipulation of the parties reversing the 18 decision of the Commissioner of Social Security in this case, and remanding pursuant to section 19 205(g) of the Social Security Act, as amended, 42 U.S.C. § 405(g), sentence four. Docket No. 17. 20 Currently pending before the court is Plaintiff’s motion for attorney’s fees under the Equal Access to 21 Justice Act (“EAJA”). Docket No. 20. The parties do not dispute that Plaintiff is entitled to 22 attorney’s fees under the EAJA, or that he has made a valid assignment of the fees to his attorney. 23 Defendant opposes only Plaintiff’s request that this Court order Defendant to disclose whether it 24 contends that the award of fees is subject to offset for any debt owed by Plaintiff to the federal 25 government. There also appears to be minor confusion about the amount of fees incurred. 26 /// 27 /// 28 /// 1 2 II. DISCUSSION A. 3 Notice of Claimed Offset Plaintiff requests that this Court order Defendant to provide notice within 21 days of any 4 claimed offset that would reduce the amount awarded here. In support of this request, Plaintiff cites 5 Bender v. Astrue, No. C 10–05333–MR, 2012 WL 113357, at *4 (N.D.Cal. Jan.12, 2012), in which 6 the court issued such an order. Defendant objects that such an order is improper as it is the 7 Department of Treasury, and not Defendant, who maintains records on such debts. 8 This Court recently considered this very issue in Palomares v. Astrue, C-11-4515 EMC, had cited no authority for ordering the Commissioner to provide such a notice of offset. Id. at *9. 11 For the Northern District of California 2012 WL 6599552 (N.D. Cal. Dec. 18, 2012). In that case, this Court noted that the Bender court 10 United States District Court 9 Further, this Court reasoned: 12 There is no law stating that the Court must order the Commissioner to notify a plaintiff of an offset. Under 31 U.S.C. § 3716, the head of an administrative agency may collect a debt by administrative offset only after giving the debtor written notice. 31 U.S.C. § 3716(a)(1). In Astrue v. Ratliff, the Social Security Administration notified the Plaintiff of an offset according to § 3716. ––– U.S. ––––, ––––, 130 S.Ct. 2521, 2522, 177 L.Ed.2d 91 (2010). In McCarty v. Astrue, the Treasury Department sent Plaintiff notice of its intent to collect a debt by offsetting the EAJA award. 505 F.Supp.2d 624, 632 (N.D. Cal.2007). The court in McCarty held that Plaintiff’s due process rights were not violated by Defendant’s failure to give notice that Plaintiff’s EAJA award was eligible for an offset. Id. There is no dispute that notice must be given under § 3716 before an EAJA award can be offset. Since § 3716 applies, the Court declines to order the Commissioner to give special notice within twenty-one days if it contends the awarded EAJA amount is subject to an offset. 13 14 15 16 17 18 19 20 21 Nothing in this case calls into question the reasoning or result in Palomares. Accordingly, 22 Plaintiff’s request for an order requiring Defendant to disclose any claimed offset is DENIED. 23 B. 24 Amount of Fees In his opposition, Defendant states that he does not oppose the amount of fees requested by 25 Plaintiff, and attaches a proposed order awarding $3,477.00 in fees. In his reply brief, Plaintiff notes 26 that this amount, taken from Plaintiff’s motion, does not include fees incurred in preparing the reply 27 brief, or in attending a hearing on this motion. As this court is ruling on this motion without a 28 hearing, fees for attending the hearing are unnecessary. Plaintiff is requesting an additional $311.00 2 1 for 1.7 hours spent in preparing the reply brief.1 As Defendant does not object to the hourly rate 2 requested by Plaintiff’s counsel, and as the amount of time requested for the reply brief is 3 reasonable, this Court finds that Plaintiff is entitled to $3788.00 in fees. 4 5 III. CONCLUSION For the foregoing reasons, the Court GRANTS Plaintiff’s Motion for attorney’s fees under 6 the Equal Access to Justice Act in the amount of $3788.00. The fee should be paid directly to 7 Plaintiff’s counsel, subject to any administrative offset due to Plaintiff’s outstanding federal debt, if 8 any exists. 9 This order disposes of Docket Number 20. 11 For the Northern District of California United States District Court 10 IT IS SO ORDERED. 12 13 Dated: January 7, 2013 14 _________________________ EDWARD M. CHEN United States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 1 27 28 Defendant points out that Plaintiff’s counsel has briefed the issue of notification of offset in several recent cases, though he does not seek a reduction in Plaintiff’s fees in this case. Plaintiff’s counsel submitted a declaration stating that none of the fees requested in this case are repetitive or duplicative with time billed in other cases. 3

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?