Gould v. Commissioner of the Social Security Administration

Filing 55

ORDER Granting 52 Motion for Instructions; and Order Setting Deadlines for Objections and Claims. Signed by Judge Larry Alan Burns on 7/12/2018. (All non-registered users served via U.S. Mail Service)(jdt)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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JAMES R. GOULD,

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CASE NO. 07CV1039-LAB (WMC)
Plaintiff,

ORDER GRANTING MOTION FOR
INSTRUCTIONS; AND

vs.
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ORDER SETTING DEADLINES
FOR OBJECTIONS AND CLAIMS

COMMISSIONER OF THE SOCIAL
SECURITY ADMINISTRATION,

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Defendants.

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After the Court awarded $10,068.88 in attorney’s fees pursuant to the Equal Access

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to Justice Act (EAJA), Plaintiff disclaimed any interest in them, saying that by the terms of

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his retainer agreement, they belong to his attorney Mary Adele Mitchell. Another attorney

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has been substituted in as counsel in place of Mitchell, and has unsuccessfully attempted

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to contact her or notify her of the award. Defendant’s counsel has filed a motion seeking

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further instructions about what to do. Defendant stands ready to pay the fees, but thus far

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they have been unclaimed.

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Courts have been confronted with cases where a plaintiff or other claimant cannot be

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found. See, e.g., Massey v. Wal-Mart Stores, Inc., 2017 WL 2539832 (N.D. N.Y. May 5,

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2017); Wiggins v. Daymar Colleges Group, LLC, 317 F.R.D. 42 (W.D. Ky. 2016). While

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Mitchell herself was not a party, Plaintiff’s filings make clear she is in a comparable position.

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But this case is somewhat different because an award has already been made.

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07CV1039

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Plaintiff’s fee motion did not allege bad faith or any facts that would support an award

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of fees as a sanction. Rather, the fee award was made in furtherance of the EAJA’s purpose

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to eliminate barriers that prevent small businesses and individuals from securing vindication

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of their rights in proceedings by or against the government.

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541 U.S. 401,406 (2004).

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422–23. The purpose of eliminating barriers is served by making a fee award available,

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which has been done here.

See Scarborough v. Principi,

The EAJA is applied with equitable considerations in mind.

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Of course in nearly all cases, the fee award will be claimed. But here, the Plaintiff

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through counsel has apparently disclaimed any right to the fees, and neither Mitchell nor any

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of her successors in interest have appeared or can be found. Under 28 U.S.C.

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§ 2412(d)(1)(A), the Court can decline to award fees if “special circumstances” would make

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an award unjust. Under the unusual circumstances here, the purpose of the statute would

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not be served by providing a windfall to the Plaintiff. Nor would it be served by requiring the

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government either to pay some other party under a cy pres arrangement or to sequester the

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money indefinitely.

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California has an Unclaimed Property Law, Cal. Civ. Code §§ 1501, et seq. under

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which unclaimed property can be transferred to the Controller and possibly reunited with its

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owner. The Court is not inclined to utilize this procedure, however. First, as it exists now, the

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award is only a right to receive money. Only if the money is actually paid will there be

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property to deposit with the Controller. Second, because efforts to notify Mitchell have been

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unavailing, it seems unlikely the Controller’s efforts will meet with any success. And third, if

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the fees are paid and remain unclaimed, they will escheat to the state of California. The

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EAJA’s purposes would not be served by this.

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The Court instead proposes to set a deadline for making a claim to the fee award. If

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the fees go unclaimed, the Court under 28 U.S.C. § 2412(d)(1)(A) will determine that special

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circumstances make a fee award unjust and will rescind its fee award. If any party objects

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to this proposal, they must file a written objection by August 3, 2018.

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07CV1039

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Assuming no objections are filed, the deadline for claiming all or part of the fees will

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be Friday, September 14, 2018. If Mitchell, Plaintiff, or anyone else wishes to claim all or

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part of the fees, they shall file a claim by that date. If no claims are filed, the fee award will

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be rescinded.

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Counsel for the government shall mail a copy of this order to any known addresses

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for Mitchell. If counsel for either party are aware of any other reasonable way of notifying

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Mitchell or her successors, they are directed to make efforts to do so.

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IT IS SO ORDERED.
DATED: July 12, 2018

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HONORABLE LARRY ALAN BURNS
United States District Judge

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07CV1039