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Matt A. Ferrando v. Commissioner of Social Security

March 14, 2013

MATT A. FERRANDO,
PLAINTIFF,
v.
COMMISSIONER OF SOCIAL SECURITY,
DEFENDANT.



The opinion of the court was delivered by: Garland E. Burrell, Jr. Senior United States District Judge

ORDER GRANTING MOTION FOR ATTORNEYS' FEES AND COSTS

Plaintiff Matt A. Ferrando moves for $21,921.54 in attorneys' fees and costs under the Equal Access to Justice Act ("EAJA"), prescribed in 28 U.S.C. § 2412(d). (Pl.'s Appl., ECF No. 50, 2:12.) Defendant Commissioner of Social Security ("Commissioner") originally opposed Plaintiff's motion on the ground that it did not include an "itemized statement . . . stating the actual time expended and the rate at which fees and other expenses were computed" as required by § 2412(d)(1)(B). (Def.'s Opp'n, ECF No. 54, 2:4-8.) However, Plaintiff has since filed an itemized statement, (Decl. of Andrew P. Ragnes ("Ragnes Decl."), ECF No. 55), and the Commissioner has not responded to that filing.

I. BACKGROUND

On October 17, 2008, Plaintiff filed suit under 42 U.S.C. § 405(g) for judicial review of the Commissioner's final decision denying Plaintiff's application for disability benefits. (ECF No. 1.)

The Commissioner subsequently prevailed on its summary judgment motion, resulting in the denial of disability benefits being upheld. (ECF No. 38.) The Ninth Circuit reversed and remanded, directing that the Commissioner "determine when [Plaintiff's] mental impairments became so severe as to render him disabled." Ferrando v. Comm'r, 449 Fed. App'x 610, 612 (9th Cir. 2011). It also disapproved of the Commissioner's argument that Plaintiff's treating psychiatrist's opinion was entitled to less weight since it was based only on Plaintiff's subjective allegations. Id. at 612 n.2. On November 17, 2011, the district court remanded the action to the Commissioner and closed the case. (ECF No. 48.) On December 5, 2011, Plaintiff filed the instant motion for EAJA attorneys' fees, and on March 27, 2012, Plaintiff supplemented his application with an itemized statement. (ECF Nos. 50, 55.)

II. STANDARD

To recover attorneys' fees from the Commissioner under the EAJA, a plaintiff must show that "(1) [he] is the prevailing party; (2) the government has not met its burden of showing that its positions were substantially justified or that special circumstances make an award unjust; and (3) the requested attorney's fees and costs are reasonable." Perez-Arellano v. Smith, 279 F.3d 791, 793 (9th Cir. 2002) (citing 28 U.S.C. § 2412(d)(1)(A)). A successful EAJA fee applicant must also file a fee application within thirty days of entry of final judgment, and support the application with an itemized statement of fee rates and attorney time expended. 28 U.S.C. § 2412(d)(1)(B); Poole v. Rourke, 779 F. Supp. 1546, 1560 (E.D. Cal. 1991). In addition, a plaintiff must satisfy a net worth requirement, by showing he is "an individual whose net worth did not exceed $2,000,000 at the time the civil action was filed." 28 U.S.C. § 2412(d)(2)(B).

III. DISCUSSION

A. Eligibility for Fees

Plaintiff satisfies the net worth and timeliness requirements of the EAJA. Plaintiff's proof that he possessed a net worth of under $2,000,000 at the time the action was initiated is undisputed, and his initial fee application was timely since it was filed eighteen days after judgment entered. However, Plaintiff failed to support his application with an itemized statement during the thirty-day statutory period for EAJA fee applications. In response to the Commissioner's objection concerning this omission, Plaintiff submitted an itemized statement, which is considered since the Commissioner neither contests its sufficiency nor argues that the Commissioner suffered prejudice. See United States v. Hristov, 396 F.3d 1044, 1048 (9th Cir. 2005) ("When the government can show no prejudice from allowing an amendment to a fees application, it is unduly harsh not to allow an amendment to bring the application in conformity with a technical pleading requirement."); id. at 1047-48 (permitting addition of itemized statement after expiration of thirty-day EAJA period under statute incorporating the filing requirements of EAJA § 2412).

Plaintiff is also the prevailing party in the litigation since he obtained an order remanding the Commissioner's decision and "terminat[ing] the litigation with victory for the plaintiff." Shalala v. Schaefer, 509 U.S. 292, 301, 300 (1993) (ruling that a plaintiff such as Ferrando "who won a remand order, pursuant to sentence four of [42 U.S.C.] § 405(g)" is a prevailing party). Therefore, Plaintiff is entitled to attorneys' fees "unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust." 28 U.S.C. § 2412(d)(1)(A).

Plaintiff bears the initial burden of pleading that the Commissioner's position was not substantially justified. Scarborough v. Principi, 541 U.S. 401, 414 (2004); accord In re Application of Mgndichian, 312 F. Supp. 2d 1250, 1255 (C.D. Cal. 2003). If Plaintiff makes this allegation, the burden shifts to the Commissioner to prove either that its position in the underlying litigation was substantially justified or that special circumstances make an award unjust. Scarborough, 541 U.S. at 416. Plaintiff alleges the Commissioner's position was unjustified since Defendant improperly sought to discredit Plaintiff's treating psychiatrist's diagnosis, as was recognized by the Ninth Circuit, which criticized the Commissioner's position and rejected it. (See Pl.'s Appl. 5:5-20; Def.'s Mot. for Summ. J., ECF No. 33, 9:21-22, 10:1-2; Ferrando, 449 Fed. App'x at 611-12 & n.2.) Plaintiff has thus met his pleading burden. The Commissioner does not oppose this portion of Plaintiff's attorneys' fees motion, and has not shown that its position was substantially justified or that special circumstances make an award unjust. Accordingly, Plaintiff is entitled to reasonable attorneys' fees and costs.

B. Reasonable Fees and Costs

Since Plaintiff is entitled to fees, "[i]t remains for the district court to determine what fee is 'reasonable.'" Hensley v. Eckerhart, 461 U.S. 424, 437 (1983) (setting forth this rule in fee shifting case under 42 U.S.C. § 1988); Costa v. Comm'r of Soc. Sec. Admin., 690 F.3d 1132, 1135 (9th Cir. 2012) (per curiam) (recognizing that the principles set forth in § 1988 cases apply to reasonable fee determinations under the EAJA). As the fee applicant, Plaintiff "bears the burden of ...


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