Clemons v. Colvin
ORDER Granting 28 Motion for Attorney's Fees. Plaintiff Wanda R. Clemons' attorneys Rohlfing & Kalagian, LLP are awarded attorney's fees pursuant to 28 U.S.C. § 2142(d)(1)(A) in the amount of $5,039.98. The clerk of court shall enter judgment accordingly. Signed by Judge Andrew P. Gordon on 4/3/2017. (Copies have been distributed pursuant to the NEF - SLD)
UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA
WANDA R. CLEMONS,
CAROLYN W. COLVIN,
Case No. 2:15-cv-00389-APG-VCF
ORDER GRANTING MOTION FOR
(ECF No. 28)
Plaintiff Wanda R. Clemons’ attorney moves for an award of attorney’s fees following
Clemons’ successful motion for a remand for further proceedings. Clemons’ attorneys present
evidence that two lawyers expended 24.7 hours and two paralegals expended 2.6 hours on
Clemons’ case before this court. ECF No. 28-1. Counsel requests a total of $5,039.98. The
defendant did not oppose the motion.
A court generally may not award costs or attorney’s fees against the United States absent a
statute directly authorizing such an award. United States v. Chem. Found., 272 U.S. 1, 20 (1926).
The EAJA is a partial waiver of the United States’ sovereign immunity authorizing a court to
award costs and attorney’s fees against the United States in certain circumstances. W. Watersheds
Project v. Interior Bd. of Land Appeals, 624 F.3d 983, 985 (9th Cir. 2010). Specifically, 28
U.S.C. § 2412(d)(1)(A) authorizes an award of attorney’s fees to a “prevailing party other than
the United States . . . unless the court finds that the position of the United States was substantially
justified or that special circumstances make an award unjust.” A position is substantially justified
if it has a “reasonable basis in law and fact.” Ratnam v. INS, 177 F.3d 742, 743 (9th Cir. 1999)
(quotation omitted). The United States bears the burden of showing its position was substantially
justified. Id. Whether to award fees under the EAJA, including the determination of whether the
United States’ position was substantially justified, lies within the court’s discretion. Gutierrez v.
Barnhart, 274 F.3d 1255, 1258 (9th Cir. 2001).
Clemons is a prevailing party because she obtained a remand for further proceedings after
a finding that the ALJ erred. See Shalala v. Schaefer, 509 U.S. 292, 302 (1993); Akopyan v.
Barnhart, 296 F.3d 852, 854 (9th Cir. 2002). The United States has not responded to this motion
so it has not met its burden of showing its position was substantially justified. The requested fees
are reasonable. I therefore grant the motion.
IT IS THEREFORE ORDERED that the motion for attorney’s fees (ECF No. 28) is
GRANTED. Plaintiff Wanda R. Clemons’ attorneys, Rohlfing & Kalagian, LLP,1 are awarded
attorney’s fees pursuant to 28 U.S.C. § 2142(d)(1)(A) in the amount of $5,039.98. The clerk of
court shall enter judgment accordingly.
DATED this 3rd day of April, 2017.
ANDREW P. GORDON
UNITED STATES DISTRICT JUDGE
Plaintiff Wanda R. Clemons assigned her rights under the EAJA to her attorneys with the
understanding that they will credit her bills for any recovery. ECF No. 28-3.
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