United States District Court, C.D. California, Eastern Division
MEMORANDUM OPINION AND ORDER GRANTING PLANTIFF'S MOTION FOR EAJA ATTORNEY FEES
DOUGLAS F. McCORMICK, Magistrate Judge.
On February 4, 2014, Plaintiff Ronald Welch filed a motion for award of attorney fees under the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412. Because the Court finds that the Commissioner's position was not "substantially justified, " as discussed below, the Court grants Plaintiff's motion for EAJA fees.
FACTUAL AND PROCEDURAL BACKGROUND
On March 29, 1999, Plaintiff applied for Social Security disability insurance benefits. On February 27, 2002, the ALJ issued an unfavorable decision. Plaintiff requested Appeals Council review. On July 15, 2003, the Appeals Council remanded the case to the ALJ for further proceedings. On August 28, 2003, the ALJ again denied benefits.
Plaintiff had 60 days, or until October 27, 2003, to request that the Appeals Council review the August 28, 2003 decision. 20 C.F.R. § 404.968. An untimely request for review results in the Appeals Council dismissing the request. 20 C.F.R. § 404.971. On September 25, 2003, Plaintiff's counsel sent a letter by fax to the Appeals Council requesting review. When Plaintiff's counsel had heard or received nothing in almost a year, Plaintiff's counsel faxed a status request to the Appeals Council on August 9, 2004. After learning that the Appeals Council did not receive the request for review, Plaintiff's counsel provided the Appeals Council with a fax cover sheet dated September 25, 2003, a request for review dated September 25, 2003, and a fax transmission log showing that a fax had been sent to the Appeals Council on September 25, 2003.
On January 13, 2006, the Appeals Council dismissed Plaintiff's request for review, finding that it was not filed within 60 days of the ALJ's unfavorable decision, as required by 20 C.F.R. 404.968(a). The denial states in pertinent part:
The representative, Bill Latour, faxed a request for review for the claimant to the Appeals Council on March 29, 2005. The request for review is dated September 25, 2003 and a cover sheet dated September 25, 2003 is attached. There is also a "receipt" showing a fax was sent to the Appeals Council on September 25. However, the representative did not submit any clear proof that this particular request for review was faxed to the Appeals Council in a timely manner.
On February 23, 2009, Plaintiff faxed a request to reopen the August 2003 unfavorable decision, accompanied by a declaration by attorney Bill Latour, signed under penalty of perjury, authenticating the September 2003 request for review. On August 13, 2010, Plaintiff again requested that the Appeals Council reopen the August 2003 unfavorable decision. On March 30, 2011, the Appeals Council denied review of the second application for benefits and again denied Plaintiff's request to reopen the 2003 decision.
On May 16, 2011, Plaintiff appealed the denial of his request for review to this Court. On February 29, 2012, United States Magistrate Judge Marc L. Goldman dismissed Plaintiff's complaint for lack of subject matter jurisdiction, finding that Plaintiff's factual assertion that he timely filed his request for review with the Appeals Council did not set forth a colorable constitutional claim. Dkt. 22. Judge Goldman's decision was limited to the question of whether Plaintiff had raised a colorable due process claim; because the Appeals Council had given Plaintiff a "fair opportunity to be heard" on his claim that he had submitted a timely request, Judge Goldman concluded that the Due Process Clause was not implicated even though he indicated that the Appeals Council's decision was "certainly" subject to debate. Dkt. 22 at 6.
Plaintiff appealed this Court's dismissal to the Ninth Circuit Court of Appeals. On October 17, 2013, the Ninth Circuit reversed:
Although the Council's dismissal order is not a final decision, the district court nonetheless had jurisdiction to review it under 42 U.S.C § 405(g) because Welch asserted a colorable constitutional claim. Califano v. Sanders , 430 U.S. 99, 109, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977); Matlock v. Sullivan , 908 F.2d 492, 493-94 (9th Cir.1990). We recently held that due process requires the Commissioner to give "some explanation" when dismissing an apparently valid request for a hearing. Dexter v. Colvin, No. 12-35074 , 731 F.3d 977, 980-81, 2013 WL 5434699, at *3 (9th Cir. Sept. 30, 2013). Because Welch provided the Council with evidence that, if credited, would establish that he timely filed the request for review, due process requires the Council to provide some explanation why it concluded to the contrary.
We vacate the judgment of the district court and remand to the district court to remand to the Commissioner to consider the evidence that Welch timely filed his request for review and either to explain her decision dismissing the request or to treat it as timely.
Welch v. Colvin, 542 F.Appx. 609, 609-10 (9th Cir. Oct. 17, 2013). The Commissioner filed a petition for panel rehearing, which was ...