Avello v. Colvin

Filing 58

ORDER Granting Plaintiff's 54 Motion for Attorney's Fees and costs in the amount set forth in the 57 Stipulation for the Award and Payment of Attorney Fees and Expenses. The parties' 57 Stipulation for the Award and Payment of Attorney Fees and Expenses is Granted. Upon verification (1) that Plaintiff has no debt qualifying for offset under the United States Department of the Treasury's Offset Program and (2) that Plaintiff has assigned his right to the EAJA fees award to his attorney, Defendant shall send the agreed-upon payment directly to Plaintiff's counsel. Signed by Judge Richard F. Boulware, II on 3/2/2015. (Copies have been distributed pursuant to the NEF - SLD)

1
2

UNITED STATES DISTRICT COURT

3

DISTRICT OF NEVADA

4

***

5

WILLIAM E. AVELLO,

6

Plaintiff,
ORDER

7
8
9

v.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.

10
11

Case No. 2:13-cv-00504-RFB-GWF

I.

INTRODUCTION

12

This case is before the Court on Plaintiff William E. Avello’s Motion for Attorney’s Fees

13

and Costs Pursuant to the Equal Access to Justice Act, filed January 29, 2015 (ECF No. 54) and

14

the parties’ Stipulation for the Award and Payment of Attorney Fees and Expenses, filed

15

February 17, 2015 (ECF No. 57). For the reasons discussed below, the Court grants Plaintiff’s

16

motion for attorney’s fees and costs in the amount stipulated by the parties.

17
18

II.

BACKGROUND

19

On March 22, 2013, Plaintiff filed a complaint in this Court requesting judicial review of

20

the final decision of the Commissioner of the Social Security Administration to deny him

21

benefits under the Social Security Act. ECF Nos. 1, 11. On October 31, 2014, this Court issued

22

an Order adopting the Report & Recommendation of the Honorable George W. Foley, United

23

States Magistrate Judge, and remanded this case to the Social Security Administration “for

24

further determination of when Plaintiff became disabled within the meaning of the Social

25

Security Act.” Order at 2, ECF No. 52. In the motion currently before the Court, Plaintiff,

26

through retained counsel Heather Freeman, requests $17,774.78 in attorney’s fees and $350.00 in

27

costs pursuant to the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412. ECF No. 54.

28

1

Subsequently, the parties stipulated to an award of $15,000 in attorney’s fees under the EAJA

2

and $350.00 in costs under 28 U.S.C. § 1920. ECF No. 57.

3
4

III.

DISCUSSION

5

The EAJA provides that a prevailing party other than the United States should be

6

awarded attorney’s fees and other expenses that party incurs in any civil action by or against the

7

United States “unless the court finds that the position of the United States was substantially

8

justified or that special circumstances make an award unjust.” 28 U.S.C. § 2412(d)(1)(A). A

9

position is “substantially justified” if it is “justified to a degree that could satisfy a reasonable

10

person.” Pierce v. Underwood, 487 U.S. 552, 565–66 (1988). In other words, to be substantially

11

justified the position must have a reasonable basis in law and fact. Id.; United States v. Marolf,

12

277 F.3d 1156, 1161 (9th Cir. 2002). A district court’s award of EAJA attorney fees must be

13

reasonable. Sorenson v. Mink, 239 F.3d 1140, 1145 (9th Cir. 2001). In assessing reasonableness,

14

courts examine the number of hours reasonably expended on the case, the reasonable hourly rate,

15

and the level of success achieved by the plaintiff. Id. at 1145, 1147 (citing Hensley v. Eckerhart,

16

461 U.S. 424, 433, 435 (1983)).

17

Here, Plaintiff is a prevailing party. Gutierrez v. Barnhart, 274 F.3d 1255, 1257 (9th Cir.

18

2001) (“An applicant for disability benefits becomes a prevailing party for the purposes of the

19

EAJA if the denial of her benefits is reversed and remanded regardless of whether disability

20

benefits ultimately are awarded.”). The parties have stipulated that Plaintiff be awarded

21

attorney’s fees in the amount of $15,000.00 and costs in the amount of $350.00. By stipulating to

22

the award, Defendant concedes any argument that its position was substantially justified or that

23

any special circumstances would make the award unjust. After reviewing Plaintiff’s petition, the

24

attached time logs and statement of professional qualifications from Plaintiff’s counsel, and the

25

stipulation, the Court finds that Plaintiff’s petition should be granted and that the stipulated

26

amounts of $15,000.00 in attorney’s fees and $350.00 in costs are reasonable.

27

Under the terms of the stipulation, after the Court issues its order granting EAJA fees,

28

Defendant will determine whether the fees are subject to any offset pursuant to Astrue v. Ratliff,

-2-

1

560 U.S. 586, 594 (2010). Additionally, Plaintiff’s counsel has represented to the Court that

2

Plaintiff has assigned his right to EAJA fees; however, the Court has not been provided with any

3

evidence of such an assignment and so cannot conclusively find that the assignment has occurred

4

at this time. Therefore, upon verification (1) that Plaintiff has no debt qualifying for offset under

5

the United States Department of the Treasury’s Offset Program and (2) that Plaintiff has assigned

6

his right to the EAJA fees award to his attorney, Defendant shall send the payment directly to

7

Plaintiff’s counsel.

8

Finally, as noted in the stipulation, this award of attorney’s fees and costs is without

9

prejudice to Plaintiff’s counsel’s right to seek Social Security Act attorney’s fees under 42

10

U.S.C. § 406(b).

11
12

IV.

CONCLUSION

13

Accordingly,

14

IT IS ORDERED that Plaintiff William E. Avello’s Motion for Attorney’s Fees and

15

Costs (ECF No. 54) is GRANTED in the amount set forth in the Stipulation for the Award and

16

Payment of Attorney Fees and Expenses (ECF No. 57).

17

IT IS FURTHER ORDERED that the parties’ Stipulation for the Award and Payment

18

of Attorney Fees and Expenses (ECF No. 57) is GRANTED. Upon verification (1) that Plaintiff

19

has no debt qualifying for offset under the United States Department of the Treasury’s Offset

20

Program and (2) that Plaintiff has assigned his right to the EAJA fees award to his attorney,

21

Defendant shall send the agreed-upon payment directly to Plaintiff’s counsel.

22
23

DATED this 2nd day of March, 2015.

24
_________________________________
RICHARD F. BOULWARE, II
UNITED STATES DISTRICT JUDGE

25
26
27
28

-3-