Gors v. Astrue

Filing 22

ORDER granting 17 Motion for Attorney Fees; granting 21 Motion for Attorney Fees. Signed by US Magistrate Judge John E. Simko on 3/12/13. (CMS)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DNISION

:

FILED

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CAROLINE M. GORS

CLEh

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Plaintiff,
vs.

CAROLYN M. COLVIN,
Acting Commissioner of Social Security,
Defendant.

CN.12-4162

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MAR 122013

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ORDER
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* (Plaintiffs Motions for Attorney's Fees)
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Docs. 17 and 21
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Pending are Plaintiff s Motions for Attorney's Fees and Costs (Doc. 17 and 21). Plaintiff
requests an award of attorney's fees in the amount of$7,578.48 1 inclusive of sales tax, pursuant to
the Equal Access to Justice Act (hereafter "EAJA"), 28 U.S.C. § 2412(d), as well as expenses
(excluding those expenses already recovered pursuant to a Bill ofCosts)2 of$17.25 pursuant to 28
U.S.C. § 2412(a). The amounts are requested to be paid directly to Plaintiff's attorney pursuant to
her written agreement with him (See Doc. 17-1). The Government has filed an objection. Doc. 19.

BACKGROUND
Plaintiff filed a claim for disability insurance benefits. After an Administrative Law Judge
(ALJ) denied benefits and the Appeals Council denied review, Plaintiff appealed the ALJ 's decision
to this Court pursuant to 42 U.S.C. § 405(g). Plaintiff sought reversal ofthe Commissioner's final
decision or remand ofthe case for a further hearing, and an award ofattorney's fees under the EAJ A
on the grounds that the Commissioner's action was not substantially justified. (Doc. 1). After the

IThese amounts include the original amount requested in Plaintiffs Motion (Doc. 17) and
the amount requested in Plaintiffs Supplemental Motion (Doc. 21), which incorporated the
time Plaintiffs counsel spent preparing a response to the Commissioner's resistance to his
Motion for Attorney's Fees.
2Plaintiff has already filed a Bill of Costs in the amount of $350, which represents the
amount of the filing fee. See Doc. 16.

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Plaintiff filed her Motion for Summary Judgment along with a supporting Brief, and copies of
documents which had been presented to but not considered by the Appeals Council and a Motion
to Seal those documents, (Docs. 9, 10, 11 & 12), the Commissioner moved to remand to the agency
for further consideration. (Doc. 13). On January 28, 2013, the District Court entered an Order
granting the Commissioner's Motion for Remand, and remanded the case to the Commissioner
pursuant to § 405(g). Doc. 14 and Doc. 15.

On February21, 2013, Plaintiff's attorney filed this motion requesting an award ofattorney's
fees and costs pursuant to EAJA. The time record for attorney Steven Pfeiffer, setting forth the time
he spent on this social security appeal, is attached to the Motion. Doc. 17.

Pfeiffer filed the

supplemental Motion with supporting documentation on March 8, 2013. Doc. 21.

DISCUSSION
Pursuant to EAJ A, a court:
shall award to a prevailing party other than the United States fees and other expenses,
in addition to any costs awarded ... , incurred by that party in any civil action (other
that cases sounding in tort), including proceedings for judicial review of agency
action, brought by or against the United States in any court having jurisdiction ofthat
action, unless the court finds that the position ofthe United States was substantially
justified or that special circumstances make an award unjust.
28 U.S.C. § 2412(d)(l)(A). Plaintiff timely filed her petition for attorney's fees pursuant to 28
U.S.C. § 2412(d)(l)(B) (within thirty days after final judgment). Accordingly, Plaintiffs attorney
is entitled to fees and expenses if(l) Plaintiffwas the prevailing party; and (2) the Commissioner's
position was not substantially justified.

The Supreme Court has held that a social security claimant who obtains a "sentence four"
judgment reversing denial of disability benefits and requiring further proceedings before the agency
is a "prevailing party" for purposes of EAJA. See Shalala v. Schaefer, 509 U.S. 292, 300-302
(1993). The Court's January 28,2013 Order was entered pursuant to sentence four of § 405(g).
Upon entry ofthe January 28 Order, Plaintiff became a prevailing party entitled to seek attorney's
fees under EAJA. Id.

2

The Commissioner bears the burden ofproving her position was substantially justified. See
Scarborough v. Principi, 541 U.S. 401,414 (2004); Lauer v. Barnhart, 321 F.3d 762, 764 (8th Cir.

2003). Substantially justified in this context does not mean the same thing as substantial evidence
in the context ofthe underlying proceeding. Here substantially justified means "justified to a degree
that could satisfy a reasonable person" or having a "reasonable basis in law and fact." Koss v.
Sullivan, 982 F.2d 1226, 1229 (8th Cir. 1993) quoting Pierce v. Underwood, 487 U.S. 552, 566 n.2,

108 S.Ct. 2541, 101 L.Ed.2d 490 (1988).

The standard is whether the Commissioner's position

is well founded in law and in fact, "solid though not necessarily correct." Lauer v. Barnhart, 321
F.3d 762,764 (8th Cir. 2003); Friends ofBoundary Waters Wilderness v. Thomas, 53 F.3d 881, 885
(8th Cir. 1995).

The Commissioner's position must be substantially justified at both the

administrative and litigation levels. Iowa Express Distribution, Inc. v. NLRB, 739 F.2d 1305, 1309
(8th Cir. 1984). In this case it appears the reason for remand was the unexplained failure of the
Appeals Council to consider evidence which was presented for its review. The Commissioner has
presented no argument that this failure by the Appeals Council was substantially justified.

The Court must next determine whether the amount requested by Attorney Pfeiffer is
reasonable pursuant to 28 U.S.C. § 2412(d)(2)(A) and/or whether "special circumstances" exist
which make the award of the fees as requested unjust in this instance pursuant to 28 U.S.C. §
2412(d)(1 )(A). The Commissioner asserts Pfeiffer's time spent on the file after becoming aware of
the possibility the case may be remanded to the agency because of Appeals Council's failure to
review pertinent records should not be compensated. Those hours, the Commissioner asserts, were
unreasonably spent and constitute "special circumstances" which render his request for fees unjust.

The Court has carefully reviewed the docket and Attorney Pfeiffer's time records. It appears
Attorney Pfeiffer first tried to communicate on January 4,2013 with opposing counsel about the
material which was not considered by the Appeals CounciL Further communications occurred on
January 7, 8, 14, 15 and 16. Pfeiffer had already made one motion to continue, which was granted.
His opening Brief was due on February 1,2013. Counsel for the Government explains that as of
January 8, the Agency was "in the process" of (1) deciding whether consideration of the omitted
documents was appropriate and (2) whether remand was appropriate. Pfeiffer filed Plaintiffs

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opening Briefs and accompanying documents on January 21,2013. The Commissioner moved to
remand on January 24,2013. The Commissioner does not contend the decision to move for remand
had been made at any time before Pfeiffer filed Plaintiffs opening Brief and accompanying
documents or that if the decision had been made, that Attorney Pfeiffer had been notified of the
decision. Under these circumstances, and in the absence of any commitment from opposing counsel
regarding whether review of the documents was appropriate or request for a remand would be
forthcoming, it was reasonable for Attorney Pfeiffer to continue preparing the opening Brief and
accompanying documents. 3 No "special circumstances" make the award of attorney's fees, as
requested, unjust.

The Court has carefully reviewed the time record submitted by Attorney Pfeiffer and finds
that the time expended and the hourly rates are reasonable. The award of attorney fees shall
constitute a complete release from and bar to any claims Plaintiff may have relating to EAJA fees
and expenses arising out of this social security appeal.

The Commissioner also objects to payment of the fees and expenses directly to Attorney

Pfeiffer in light of Astrue v. Ratliff, 130 S.Ct. 2521, 177 L.Ed.2d 91 (2010). In Ratliffthe United
States Supreme Court found that EAJA fees are payable to the litigant and are therefore subject to
a Government offset to satisfy a pre-existing debt the litigant owes to the United States. In this case,
the Plaintiffhas assigned her EAJA fees to Attorney Pfeiffer. Post-Ratliff the approach of most
courts has been to honor such fee assignments in the absence ofthe litigant's pre-existing debt to the
United States. See, e.g. Walker v. Astrue, 2011 WL 1297744 (M.D. Ala.) (Ratliffdoes not explicitly
reject the practice of awarding fees to attorneys where litigant has assigned them "in cases where the
plaintiff does not owe a debt to the government ..."); Wigginton v. Astrue, 2011 WL 1253898 (E.D.
Ark.) (same); Blackwellv. Astrue, 2011 WL 1077765 (E.D. Cal.) (same); Spauldingv. Astrue, 2011
WL 1042580 (N.D. Ill.) (same); Dornbusch v. Astrue, 2011 WL 779781 (D. Minn.) (same); Bates

3. Although the Brief was filed before the deadline, the Court accepts Pfeiffer's
representation that because of his work load and pending deadlines in other cases, placing
Plaintiffs case "on hold" pending a decision by the Commissioner regarding whether to request
remand was not a reasonable option.

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v. Commissioner, 2011 WL 2149349 (N.D. Ohio) (same). This common sense approach is adopted
by the Court.

ORDER
Accordingly, IT IS ORDERED:
1.

The EAJA provides for an award of attorney's fees to a prevailing party, other than
the United States, unless the Court finds the position of the United States was
substantially justified or special circumstances make an award of fees unjust. See
28 U.S.C. § 2412(d)(l)(A).

2.

The Court finds the Commissioner's position in this case was not substantially
justified and there are no special circumstances that would make an award offees as
requested unjust.

3.

The Motions for attorney fees and expenses (Doc. 17 and Doc. 21) pursuant to the
Equal Access to Justice Act, 28 U.S.c. § 2412 (d) are GRANTED and Plaintiff is
awarded attorney fees in this social security appeal in the total amount of$7,578.48
inclusive of state and local sales tax, and expenses of$17 .25. This award is without
prejudice to Plaintiff's right to seek attorney's fees pursuant to section 206(b) of the
Social Security Act, 42 U.S.C. § 406(b), subject to the offset provisions ofthe EAJA.
Such award shall constitute a complete release from and bar to any and all claims
Plaintiff may have relating to EAJA fees in connection with this action. Further,
such award shall not be used as precedent in future cases.

4.

Plaintiff has signed an affidavit assigning her right to EAJA fees to her attorney,
Steven Pfeiffer, Esq. However, pursuant to Astrue v. Ratliff, 130 S.Ct. 2531, 2524
(201 0), EAJA fees are payable to Plaintiff as litigant and subject to offset pre­
existing debts Plaintiff may owe to the United States. Accordingly, the
Commissioner will verify whether Plaintiff owes a debt to the United States that is
subject to offset. If there is no debt owed by the Plaintiff, the fee will be made
payable to Plaintiffs attorney based on the assignment.
Dated this

$

day of March, 2013.
BY THE COURT:

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