Furtado v. Colvin

Filing 34

ORDER by Magistrate Judge Howard R. Lloyd granting in part Motion to Strike 30 . The Motion for Attorney Fees 29 shall be held in abeyance, the hearing on that motion is vacated, and the request to appear by telephone at the vacated hearing 32 is denied as moot. (hrllc1, COURT STAFF) (Filed on 1/19/2016)

E-Filed 1/19/16

1
2
3
4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6
7

KATHLEEN FURTADO,
Plaintiff,

8
9
10

United States District Court
Northern District of California

11

Case No. 13-cv-04063-HRL
ORDER GRANTING IN PART
DEFENDANT’S MOTION TO STRIKE

v.
CAROLYN W. COLVIN,

Re: Dkt. Nos. 29, 30, 32

Defendant.

12

Plaintiff Kathleen Furtado (“Furtado”) appealed to this court from the Social Security

13

Administration’s denial of her application for social security disability benefits under Title II of

14

the Social Security Act. Furtado and Defendant Carolyn Colvin (“Colvin”), Acting Commissioner

15

of the SSA, each moved for summary judgment. The court granted Furtado’s motion, denied

16

Colvin’s motion, and entered a judgment of remand to the administrative law judge for an

17

immediate award of disability benefits to Furtado. Dkt. Nos. 24, 25. Colvin timely moved the

18

court to alter its judgment under Federal Rule of Civil Procedure 59(e); Colvin does not contest

19

the court’s decision to remand this case, but argues the remand should not include instructions to

20

award benefits to Furtado. Dkt. No. 26 at 2. Furtado moved the court for an award of attorney

21

fees under the Equal Access to Justice Act (“EAJA”) and noticed a hearing for January 26, 2016 at

22

10:00 a.m. Dkt. No. 29. Colvin moved the court to strike Furtado’s attorney-fees motion as

23

premature or, in the alternative, to hold the motion in abeyance until that motion “is timely under

24

the EAJA.” Dkt. No. 30. Furtado filed an administrative motion to appear by telephone at the

25

hearing on the attorney-fees motion. Dkt. No. 32. The court does not rule on Colvin’s 59(e)

26

motion at this time, but the court does address the other pending motions.

27
28

Discussion
Colvin argues an attorney-fees motion is premature under the EAJA and the Federal Rules

1

of Appellate Procedure if that motion is filed while an agency defendant’s 59(e) motion is

2

pending. Dkt. No. 30 at 1-3. Colvin relies upon three cases to support her interpretation of the

3

operative law: (1) Melkonyan v. Sullivan, 501 U.S. 89 (1991); (2) Shalala v. Schaefer, 509 U.S.

4

292 (1993); and (3) Lolli v. County of Orange, 351 F.3d 410 (9th Cir. 2003). Furtado argues that

5

she is a prevailing party entitled to attorney fees as soon as the court issued a favorable judgment

6

and, notwithstanding Colvin’s pending 59(e) motion, the court should therefore award fees to

7

Furtado and deny Colvin’s motion to strike. Dkt. No. 31 at 2-3; Dkt. No. 33 at 2. Furtado

8

primarily relies on Dickey v. Colvin, a case in which this court denied a motion to strike under

9

similar circumstances. No. 14-cv-629-WHO, 2015 WL 575986 (N.D. Cal. Feb. 10, 2015).
The court disagrees with the reasoning of each party. The dispute turns on whether the

11
United States District Court
Northern District of California

10

time limit in the EAJA—the motion for attorney fees shall be filed “within thirty days of final

12

judgment in the action”—sets only a statute of limitations against late filing or else also prohibits

13

early filing. 28 U.S.C. 2412(d)(1)(B). Colvin relies on cases which involve similar issues, but

14

which do not answer that key question. The Ninth Circuit provided an answer, however, in Auke

15

Bay Concerned Citizen’s Advisory Council v. Marsh: an attorney-fees motion filed several months

16

prior to the “final judgment in the action” is still timely when “(1) the applicant file[s] no more

17

than 30 days after final judgment, and (2) the applicant [is] able to show that he or she [is] a

18

prevailing party . . . eligible to receive an award under [28 U.S.C. § 2412(d)(1)(B)].” 779 F.2d

19

1391, 1393 (1986) (internal quotation marks omitted).

20

holding of Auke Bay to mean that a motion for attorney fees under the EAJA is timely if it was

21

filed while an agency defendant’s 59(e) motion was pending. See Dickey, 2015 WL 575986 at 3.

22

The undersigned agrees with that interpretation of the Auke Bay standard—the first prong sets a

23

statute of limitations on filing the motion and the second prong requires that the movant

24

eventually, in fact, prevails with a final judgment. The Ninth Circuit has likewise explained that

25

“the spirit” of the Auke Bay decision and the congressional intent behind the re-enactment of the

26

EAJA in 1985 do not support an “overly technical” approach to the question of timeliness.

27

Papazian v. Bowen, 856 F.2d 1455, 1456 (1988) (discussing Auke Bay, 779 F.2d at 1393).

28

This district recently interpreted the

The Ninth Circuit has also held, however, that a pending “request for fees . . . is generally
2

1

premature” when the action is subsequently remanded for further proceedings that shall

2

“determine a significant part of the case.” Skip Kirchdorfer, Inc. v. U.S.803 F.2d 711, 712 (1986).

3

If the court grants Colvin’s request for further proceedings on remand that will not necessarily

4

result in an award of benefits, then those proceedings will determine a significant issue—whether

5

to award benefits—and Furtado’s pending attorney-fees motion will become premature.

6

Conversely, if the court denies Colvin’s 59(e) motion and Colvin does not appeal this case to the

7

Ninth Circuit, then it will be proper for the court to rule on the merits of the attorney-fees motion;

8

that is precisely what happened in Dickey v. Colvin. No. 14-cv-629-WHO, Dkt. Nos. 35, 38. The

9

court concludes that the attorney-fees motion is not ripe and therefore grants Colvin’s alternative

10

request to hold the attorney-fees motion in abeyance.
Conclusion

United States District Court
Northern District of California

11
12

The motion to strike is partially granted—the court does not strike the motion for attorney

13

fees, but that motion shall be held in abeyance. The hearing on the motion for attorney fees is

14

vacated and the motion for leave to appear by telephone at that hearing is denied as moot.

15
16

IT IS SO ORDERED.
Dated: 1/19/16

17
18
HOWARD R. LLOYD
United States Magistrate Judge

19
20
21
22
23
24
25
26
27
28
3