McMillin v. Colvin

Filing 19

ORDER denying without prejudice Plaintiff's ECF No. 17 Motion for Attorney Fees. Amended EAJA fee application due by 1/20/2017. Signed by Magistrate Judge Valerie P. Cooke on 1/4/2017. (Copies have been distributed pursuant to the NEF - KR)

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1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 4 VERONICA MCMILLIN, 3:15-cv-00222-HDM-VPC 5 6 7 8 9 10 11 Plaintiff, v. ORDER CAROLYN W. COLVIN, Acting Commissioner of Social Security Defendant. Before the court is Veronica McMillin’s (“plaintiff”) motion for attorney’s fees and costs (ECF No. 17) pursuant to the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412. The Social 12 Security Commissioner (“defendant”) filed an opposition. (ECF No. 18.) For the reasons discussed 13 below, plaintiff’s motion is denied. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 I. BACKGROUND On April 21, 2015, plaintiff filed a complaint (ECF No. 1) for judicial review of defendant’s denial of her application for Social Security Disability Insurance benefits. The undersigned entered a Report and Recommendation (ECF No. 14) on March 22, 2016 in favor of plaintiff. District Judge Howard D. McKibben adopted and accepted the report and recommendation on June 14, 2016 (ECF No. 15), remanding the matter to the Social Security Administration for further proceedings. On September 14, 2016 plaintiff moved for fees and costs in the amount of $3,714.34. (ECF No. 17 at 3.) Counsel for plaintiff requests that the award be made payable to him. (Id.) II. DISCUSSION The EAJA provides attorney fees to the prevailing party in an action seeking review of an adverse Social Security benefits determination, unless the government’s position was “substantially justified” or “special circumstances make an award unjust.” See 28 U.S.C. § 2412(d)(1)(A). An EAJA award must be reasonable. 28 U.S.C. § 2412(d)(2)(A); Hensley v. Eckerhart, 461 U.S. 424, 28 -1- 1 434 (1983) (“The district court . . . should exclude from this initial fee calculation hours that were 2 not ‘reasonably expended.’”). 3 expended, the reasonableness of the hourly rate charged, and the results obtained. Hensley, 461 4 U.S. at 433–34, Atkins v. Apfel, 154 F.3d 986, 988 (9th Cir. 1998). A reasonable attorney’s fee is 5 then calculated according to the “lodestar” amount, which equals the number of hours reasonably 6 expended multiplied by a reasonable hourly rate. Costa v. Comm’r of Soc. Sec. Admin, 690 F.3d 7 1132, 1135 (9th Cir. 2012). To determine reasonableness, the court considers the hours 8 There is no question that plaintiff is a prevailing party. See Gutierrez v. Barnhart, 274 F.3d 9 1255, 1257 (9th Cir. 2001) (“An applicant for disability benefits becomes a prevailing party for 10 purposes of the EAJA if the denial of her benefits is reversed and remanded regardless of whether 11 disability benefits are ultimately awarded.”). In her motion, plaintiff contends that defendant’s 12 position was not substantially justified. (ECF No. 17 at 2.) Defendant concedes this point, as she 13 presents no argument to the contrary. See Gutierrez, 274 F.3d at 1258 (“It is the government’s 14 burden to show that its position was substantially justified or that special circumstances exist to 15 make an award unjust.”) 16 However, defendant does dispute the amount of costs and fees incurred. (See ECF No. 18 at 17 2-4.) A party seeking fees under the EAJA must provide a statement of the amount sought, with an 18 accompanying itemization from an attorney “stating the actual time expended and the rate at which 19 fees and other expenses were computed.” § 2412(d)(1)(B). The “itemized statement” must be 20 sufficiently detailed to show “specific tasks performed.” Naporano Iron & Metal Co. v. United 21 States, 825 F.2d 403, 404 (Fed. Cir. 1987). 22 documentation. See Kilmurray v. Barnhart, 60 Fed.Appx. 128, 129 (9th Cir. 2003) (“An [EAJA] 23 award… necessitates computation based upon an itemized statement." As such, the court cannot 24 determine whether the hours spent on plaintiff’s case were reasonable or if the work completed was 25 excessive or redundant. Accordingly, the motion is denied. Plaintiff fails to supply the required supporting 26 27 28 -2- 1 III. CONCLUSION 2 IT IS THEREFORE ORDERED that plaintiff’s motion for fees and costs (ECF No. 17) is 3 DENIED WITHOUT PREJUDICE. Plaintiff may file an amended EAJA fee application by 4 January 20, 2017, which shall include a detailed itemization of all costs and expenses accrued. 5 Defendant shall have until February 3, 2017 to respond to the amended EAJA fee application. 6 Plaintiff shall have until February 13, 2017 to reply to defendant’s response. 7 DATED: January 4, 2017. ______________________________________ UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -3-

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