Clemons v. Colvin

Filing 30

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)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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WANDA R. CLEMONS,

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Plaintiff,
v.
CAROLYN W. COLVIN,

Case No. 2:15-cv-00389-APG-VCF
ORDER GRANTING MOTION FOR
ATTORNEY’S FEES
(ECF No. 28)

Defendant.

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Plaintiff Wanda R. Clemons’ attorney moves for an award of attorney’s fees following

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Clemons’ successful motion for a remand for further proceedings. Clemons’ attorneys present

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evidence that two lawyers expended 24.7 hours and two paralegals expended 2.6 hours on

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Clemons’ case before this court. ECF No. 28-1. Counsel requests a total of $5,039.98. The

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defendant did not oppose the motion.

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A court generally may not award costs or attorney’s fees against the United States absent a

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statute directly authorizing such an award. United States v. Chem. Found., 272 U.S. 1, 20 (1926).

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The EAJA is a partial waiver of the United States’ sovereign immunity authorizing a court to

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award costs and attorney’s fees against the United States in certain circumstances. W. Watersheds

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Project v. Interior Bd. of Land Appeals, 624 F.3d 983, 985 (9th Cir. 2010). Specifically, 28

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U.S.C. § 2412(d)(1)(A) authorizes an award of attorney’s fees to a “prevailing party other than

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

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justified or that special circumstances make an award unjust.” A position is substantially justified

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if it has a “reasonable basis in law and fact.” Ratnam v. INS, 177 F.3d 742, 743 (9th Cir. 1999)

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(quotation omitted). The United States bears the burden of showing its position was substantially

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justified. Id. Whether to award fees under the EAJA, including the determination of whether the

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United States’ position was substantially justified, lies within the court’s discretion. Gutierrez v.

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Barnhart, 274 F.3d 1255, 1258 (9th Cir. 2001).

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Clemons is a prevailing party because she obtained a remand for further proceedings after

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a finding that the ALJ erred. See Shalala v. Schaefer, 509 U.S. 292, 302 (1993); Akopyan v.

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Barnhart, 296 F.3d 852, 854 (9th Cir. 2002). The United States has not responded to this motion

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so it has not met its burden of showing its position was substantially justified. The requested fees

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are reasonable. I therefore grant the motion.

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IT IS THEREFORE ORDERED that the motion for attorney’s fees (ECF No. 28) is

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GRANTED. Plaintiff Wanda R. Clemons’ attorneys, Rohlfing & Kalagian, LLP,1 are awarded

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attorney’s fees pursuant to 28 U.S.C. § 2142(d)(1)(A) in the amount of $5,039.98. The clerk of

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court shall enter judgment accordingly.

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DATED this 3rd day of April, 2017.

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ANDREW P. GORDON
UNITED STATES DISTRICT JUDGE

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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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