Lucero v. Astrue

Filing 23

ORDER granting 22 Plaintiffs Unopposed Motion for Award of Attorney Fees. Defendant shall pay to Plaintiff, through counsel, reasonable attorney fees and costs in the amount of $6,764.00, by Judge Wiley Y. Daniel on 6/26/2014.(evana, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Senior Judge Wiley Y. Daniel
Civil Action No. 12-cv-02960-WYD
ROSS LUCERO,
Plaintiff,
v.
CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY,
Defendant.

ORDER

THIS MATTER is before the Court in connection with Plaintiff’s Unopposed
Motion for Award of Attorney Fees filed June 26, 2014. Plaintiff moves for an order
directing the Defendant to pay attorney fees and the filing fee under the Equal Access to
Justice Act, 28 U.S.C. § 2412 (“EAJA”), for work performed by Plaintiff’s counsel in this
social security appeal filed under the Equal Access to Justice Act, 28 U.S.C. § 2412.
Specifically, the motion seeks an award of fees in the amount of $6,764.00 for 35.6
hours of attorney time at $190.00 an hour. The motion indicates that it is unopposed.
Attached to the motion in support thereof are the Fee Agreement and an itemization of
counsel’s fees and expenses.
Turning to my analysis, 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 or special circumstances

make an award unjust. 28 U.S.C. § 2412(d)(1)(A). The burden of establishing that the
Government’s position was substantially justified rests with the Government. Gilbert v.
Shalala, 45 F.3d 1391, 1394 (10th Cir. 1995). “Substantially justified” has been defined
by the Supreme Court as “justified to a degree that could satisfy a reasonable person.”
Pierce v. Underwood, 487 U.S. 552, 565 (1988). Thus, the Government’s position must
have had a reasonable basis in both law and fact. Id.
Having reviewed Plaintiff’s motion and being fully advised in the premises, I find
that Plaintiff has shown that an award of fees under the EAJA is appropriate as Plaintiff
was the prevailing party and the Commissioner is not contesting the motion. In other
words, while the Commissioner does not concede the issue of substantial justification,
she has not made any argument or shown that the position of the United States was
substantially justified or that special circumstances make an award unjust. Accordingly,
it is
ORDERED that Plaintiff’s Unopposed Motion for Award of Attorney Fees (ECF
No. 22) is GRANTED. Defendant shall pay to Plaintiff, through counsel, reasonable
attorney fees and costs in the amount of $6,764.00.
Dated June 26, 2014
BY THE COURT:

s/ Wiley Y. Daniel
Wiley Y. Daniel
Senior United States District Judge

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