MacLuckie v. Astrue

Filing 33

ORDER. ORDERED that Plaintiffs Application for an Award of Attorney's Fees under the Equal Access to Justice Act, 28 U.S.C. § 2412 [Docket No. 26] is GRANTED in part and DENIED in part as indicated in this order. ORDERED defendant is ord ered to pay the amount of $1235.47 to plaintiff for attorney's fees under the Equal Access to Justice Act, 28 U.S.C. § 2412(d). ORDERED that Plaintiff's Uncontested Motion to Set Status Conference [Docket No. 31] and plaintiff's Unopposed Motion to Refer Pending Motions to Magistrate Judge for Report and Recommendation [Docket No. 32] are DENIED as moot by Judge Philip A. Brimmer on 09/03/14.(jhawk, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 09-cv-00595-PAB
KIM M. MACLUCKIE,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.
_____________________________________________________________________
ORDER

This matter is before the Court on the Application for an Award of Attorney’s
Fees [Docket No. 26] filed by plaintiff Kim M. MacLuckie. In the motion, plaintiff, as the
prevailing party, requests attorney’s fees in the amount of $4,211.04 pursuant to the
Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412. The motion is fully briefed and
ripe for disposition.
The EAJA provides for an award of attorney’s fees to a prevailing party in a civil
action brought against the United States unless the court finds that the position of the
United States was substantially justified. 28 U.S.C. § 2412(d)(1)(A). The burden of
establishing that the government’s position was substantially justified rests with the
government. Hadden v. Bowen, 851 F.2d 1266, 1267 (10th Cir. 1988). “Substantially
justified” means “justified to a degree that could satisfy a reasonable person” or, stated
otherwise, that the government had a “reasonable basis both in law and fact” for its
position. Pierce v. Underwood, 487 U.S. 552, 565 (1988). Under the EAJA, the Court

is to consider both the government’s position in the underlying agency action and its
position during any subsequent litigation. Hadden, 851 F.2d at 1267; see 28 U.S.C.
§ 2412(d)(2)(D)(stating that “‘position of the United States’ means, in addition to the
position taken by the United States in the civil action, the action or failure to act by the
agency upon which the civil action is based”). The EAJA also has a built-in mechanism
to disallow fees where “special circumstances make an award unjust” and gives courts
discretion to deny awards where equitable considerations dictate an award should not
be made. Scarborough v. Principi, 541 U.S. 401, 423 (2004).
On March 19, 2009, plaintiff filed a Complaint [Docket No. 3] seeking review of
the final decision of defendant Carolyn W. Colvin in her official capacity as the
Commissioner of Social Security (the “Commissioner”) denying plaintiff’s claim for
disability insurance benefits under Title II of the Social Security Act, 42 U.S.C.
§§ 401-33. On April 11, 2009, in a separate application for disability benefits, plaintiff
received a favorable decision finding plaintiff disabled as of January 24, 2008. Docket
No. 14 at 1, ¶ 1. Based on the results of plaintiff’s separate application for benefits, the
Commissioner filed a Motion for Voluntary Remand [Docket No. 13] wherein the
Commissioner sought to remand this appeal for further administrative proceedings.
The Commissioner requested a remand in order to reconcile this appeal with the
subsequent decision by the Social Security Administration which found plaintiff disabled
as of January 24, 2008. Docket No. 13 at 2, ¶ 4. Plaintiff opposed the Commissioner’s
motion for voluntary remand because it was not limited to the issued presented in this
appeal, namely, whether plaintiff was disabled between January 22, 2005 and January
23, 2008. Docket No. 14 at 2, ¶ 5. Because of plaintiff’s opposition, the Court denied
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the Commissioner’s motion for voluntary remand [Docket No. 19] and plaintiff’s appeal
proceeded before the Court. On January 6, 2011, the Court remanded the appeal, but
declined to limit the scope of the agency’s review on remand to the earlier ALJ decision.
See Docket No. 24 at 3 (citing 20 C.F.R. § 404.983).
Pursuant to plaintiff’s unopposed motion [Docket No. 29], the Court granted
plaintiff’s attorney, Ann J. Atkinson, $12,185.75 in attorney’s fees pursuant to 42 U.S.C.
§ 406(b). Docket No. 30 at 4. Plaintiff states that Ms. Atkinson will not seek any
additional fee under § 406(a) for work representing plaintiff in front of the Commissioner
and will reimburse plaintiff the lesser of the two amounts. Docket No. 29 at 2-3, 5, ¶¶ 6,
11.
The Commissioner opposes plaintiff’s application for attorney’s fees on the
grounds that special circumstances make the award of the requested fees unjust.
Docket No. 27 at 4. The Commissioner claims that plaintiff’s counsel unnecessarily
increased the fees in this case by contesting the Commissioner’s motion for a voluntary
remand. Id. at 4-5. The Commissioner argues that, regardless of whether the issues
on remand were limited in the manner advocated by plaintiff, the April 11, 2009 order
granting plaintiff benefits could be reopened and revised at the Commissioner’s
discretion within 12 months of the decision. Docket No. 27 at 4 (citing 20 C.F.R. §
404.988(a)). Thus, the Commissioner argues that her position throughout this litigation
was that the discretion concerning whether or not to revisit the April 11, 2009 decision
lay solely with the Commissioner. Id. at 5. The Commissioner asserts that, because
the Court remanded the appeal without restrictions, plaintiff did not obtain an additional
benefit by contesting the voluntary remand. Id. The Commissioner contends that it is
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unjust to award attorney’s fees for the 24.2 hours claimed (the hours expended
opposing the agency in front of this Court) because plaintiff’s counsel’s efforts were
unnecessary and ultimately unsuccessful. Instead, the Commissioner requests that the
Court award plaintiff’s attorney $1,061.46 which represents 3.8 hours of work
performed by plaintiff’s counsel prior to the Commissioner’s motion for voluntary
remand, and 2.3 hours of work done reviewing the remand Order and preparing the
EAJA fee petition. Id. at 4.
In response, plaintiff claims that her opposition to the Commissioner’s voluntary
remand was reasonable because she sought to avoid jeopardizing her successful claim
for disability benefits beginning after January 24, 2008. Docket No. 28 at 1-2. Plaintiff
does not address the Commissioner’s argument that the April 11, 2009 decision was, at
the time, subject to reopening at the Commissioner’s sole discretion. Additionally,
plaintiff argues that, because the Commissioner limited the remand proceedings to the
period of time prior to January 23, 2008, any accumulation of fees is due in large part to
the Commissioner’s position in front of this Court. Docket No. 26 at 4. The Court
disagrees.
The Commissioner may reopen a final determination on her own initiative
“[w]ithin 12 months of the date of the notice of the initial determination, for any reason.”
20 C.F.R. §§ 404.987, 404.988. Thus, regardless of whether plaintiff successfully
limited the issues on remand, the Commissioner could have, at the time of the motion
to remand, revisited the April 11, 2009 final determination for any reason. Although
plaintiff argued that an unconditional remand would jeopardize the benefits awarded as
a result of the April 11, 2009 decision of the ALJ, neither plaintiff nor the Court had any
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legal basis upon which to prevent the Commissioner from revisiting the April 11, 2009
decision, which rendered plaintiff’s opposition to the Commissioner’s motion moot. The
Commissioner was therefore substantially justified in continuing to argue for a remand
on the terms she proposed. The fact that Senior Judge Kane denied the
Commissioner’s motion for remand does not compel the opposite conclusion. Cf. Or.
Natural Res. Council v. Madigan, 980 F.2d 1330, 1332 (9th Cir. 1992) (“[o]ur
precedents do not treat the district judge’s agreement with the government in the initial
case as conclusive as to whether or not the government was reasonable” (quotations
omitted). Moreover, this Court determined that a remand under the conditions
suggested by plaintiff was inappropriate, see 20 C.F.R. § 404.983, and the fact that the
Commissioner eventually chose to limit the issues as plaintiff suggested does not affect
the veracity of the Commissioner’s position before this Court. The Court therefore finds
that the Commissioner’s position in this litigation was substantially justified.
As noted above, the Commissioner concedes that plaintiff is entitled to an award
consisting of the 3.8 hours expended by plaintiff’s counsel prior to the filing of the
Commissioner’s motion to remand and 2.3 hours expended reviewing the Court’s order
remanding the case and preparing the EAJA petition. Docket No. 27 at 4. The Court
agrees and further finds that plaintiff is entitled to an additional hour of time for review
of the motion for voluntary remand and research, time which would have been
expended regardless of whether plaintiff chose to oppose the Commissioner’s motion.
The Court has reviewed the submitted billing records and is satisfied that an award of
7.1 hours is reasonable and not excessive, redundant, and or unnecessary. See
Ramos v. Lamm, 713 F.2d 546, 553 (10th Cir. 1983), overruled on other grounds by
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Penn. v. Del. Valley Citizens’ Council for Clean Air, 483 U.S. 711, 717 n. 4 (1987). The
parties have stipulated to an hourly rate of $174.01. See Docket No. 26 at 5 n.1;
Docket No. 27 at 6. Although the Court is not bound by the parties’ stipulation, the
Court finds that an hourly rate of $174.01 is reasonable given that Ms. Atkinson has
over 25 years experience practicing in the field of Social Security disability law. See
Docket No. 26-2 at 1; Guides, Ltd. v. Yarmouth Group Prop. Mgmt., Inc., 295 F.3d
1065, 1078 (10th Cir. 2002). The Court therefore concludes that an award of $1235.47
represents the appropriate lodestar amount. See Hensley v. Eckerhart, 461 U.S. 424,
433 (1983) (defining lodestar amount as the “number of hours reasonably expended on
the litigation multiplied by a reasonable hourly rate”).
Therefore, it is
ORDERED that Plaintiff’s Application for an Award of Attorney’s Fees under the
Equal Access to Justice Act, 28 U.S.C. § 2412 [Docket No. 26] is GRANTED in part
and DENIED in part as indicated in this order. It is further
ORDERED defendant is ordered to pay the amount of $1235.47 to plaintiff for
attorney’s fees under the Equal Access to Justice Act, 28 U.S.C. § 2412(d). It is further
ORDERED that Plaintiff’s Uncontested Motion to Set Status Conference [Docket
No. 31] and plaintiff’s Unopposed Motion to Refer Pending Motions to Magistrate Judge
for Report and Recommendation [Docket No. 32] are DENIED as moot.
DATED September 3, 2014.
BY THE COURT:
s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge
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