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Neilsen v. Colvin

United States District Court, N.D. California, Eureka Division

May 13, 2014

JAMES NEILSEN, Plaintiffs,
CAROLYN W. COLVIN, Defendants.


NANDOR J. VADAS, Magistrate Judge.


Plaintiff James Neilsen sought review of a final decision by the Commissioner of the Social Security Administration ("SSA") denying his application for disability benefits under the Social Security Act. Plaintiff filed a motion for summary judgment. In part, Plaintiff argued that the denial should be reversed because opinion evidence which the administrative law judge relied upon in denying Plaintiff benefits had been omitted from the administrative record. See Doc. No. 14 (discussing Exhibit 14/F, an opinion by Dr. Katerina Christopoulos). Three months after Plaintiff filed his motion for summary judgment, the parties stipulated to remanding the case to the SSA for a new hearing, pursuant to Sentence 4 of 42 U.S.C. § 405(g). See Doc. No. 19. The parties stipulated that the action should be remanded "in light of the missing Exhibit 14F." Id. Thus, the parties stipulated to remand the action on one of the grounds Plaintiff raised in his motion for summary judgment.

After the action was remanded to the Social Security Administration, Plaintiff requested attorneys' fees under the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412(d)(1)(A). Pursuant to this statute, "a court shall award to a prevailing party other than the United States fees and other expenses, in addition to any costs... incurred by that party in any civil action (other than cases sounding in tort), including proceedings for judicial review of agency action... unless the court finds that the position of the United States was substantially justified or that circumstances make an award unjust." A party that has obtained a remand under sentence four of 42 U.S.C. § 405(g) "certainly" is a prevailing party. See Shalala v. Schaeffer, 509 U.S. 292, 302 (1993). Although the parties explored the possibility of stipulating to the amount of attorneys' fees sought by Plaintiff, they failed to reach agreement, and instead Plaintiff filed his motion for attorneys' fees under the EAJA. Doc No. 25. The parties fully briefed the motion and argued it to the court on May 13, 2014.


A. Plaintiff is entitled to recover the EAJA fees claimed in his petition.

It is not clear why Defendant opposes Plaintiff's motion for attorney's fees. Defendant does not oppose Plaintiff's fee petition on the ground that Plaintiff was not the prevailing party. See Doc. No. 28. Defendant does not argue that the Government's position was "substantially justified." Id. Defendant does not even argue that Plaintiff's fees are unreasonable. Id. at 4-5 ("the Commissioner does not contest the total requested fee of $4058.33"). Instead, Defendant merely argues that Plaintiff has not submitted evidence to support the hours he claims to have worked. Id. Plaintiff's counsel submitted a declaration attaching billing records for this case with his reply brief. See Doc. No. 30. The records establish that Plaintiff's counsel billed 21.7 hours through 2013, for a total of $4058.33, including all work performed on the motion for summary judgment and the stipulation for remand. Id. Plaintiff's counsel billed an additional 11.8 hours in 2014, including work performed to enter judgment, file a bill of costs, attempt to negotiate fees with defense counsel, and then file the present motion for fees after the parties failed to reach agreement on the issue. Id. In particular, the court notes that Plaintiff's billing records itemize numerous phone calls, emails, and letters with counsel for Defendants regarding the stipulation to remand and the fee negotiations. Id.

While "not contest[ing] the total requested fee of $4058.33" (Doc. No. 28 at 5), Defendant takes issue with the time that Plaintiff has billed after 2013, especially time billed in connection with his fee petition. Specifically, Defendant asks the court to disallow fees for time Plaintiff spent on his reply brief in support of the fees motion. Id. Defendant fails to explain how time spent obtaining fees to which Plaintiff's counsel is entitled under the EAJA, and which Defendant refused to stipulate to, is not reasonable. Fees incurred in connection with EAJA fee litigation are recoverable. See Nadarajah v. Holder, 569 F.3d 906, 925 (9th Cir. 2009) (awarding more than $13, 000 in fees incurred in connection with EAJA fee petition); see also Palomares v. Astrue, 185 Soc. Sec. Rep. Service 340, *25 (N.D. Cal. Dec. 18, 2012) (4.3 hours billed on four-page EAJA fee petition reasonable and recoverable).

The court has reviewed Plaintiff's billing records. Plaintiff's counsel requests an hourly rate of $187.02, the maximum EAJA rate allowed by the Ninth Circuit for work performed in 2013. See Doc. No. 30-1; id=XXXXXXXXXX. Plaintiff's counsel submitted a declaration itemizing the time billed on the matter through April 18, 2014: 33.5 hours. Doc. No. 30-1, Ex. 1. The time counsel billed was reasonable. See, e.g., Palomares, 185 Soc. Sec. Rep. Service 340, at *24 (finding 37.9 hours billed to social security disability case "reasonable" and listing cases in agreement). Counsel also estimated that he would bill an additional two hours after April 18, 2014. Doc. No. 30-1, Ex. 1. The court notes that much of the time counsel billed after 2013 is attributable to fruitless discussions with Defense counsel regarding Plaintiff's entitlement to EAJA fees. See id. Defendant's argument thus boils down to this: even though Defendant does not argue that Plaintiff's fees for work performed on the merits of this case are unreasonable, Plaintiff should not be allowed to recover fees for the work he was required to perform by Defendant's refusal to pay his attorneys' fees. Defendant's argument lacks merit. The court will award the full EAJA fees requested by Plaintiff's counsel.

Within seven days of this order, Plaintiff's counsel shall submit a supplemental declaration itemizing the reasonable time he billed after April 18, 2014.

B. The court will not adopt Plaintiff's proposed order.

The parties' second dispute concerns the form of Plaintiff's proposed order. See Doc. No. 30, Proposed Order. Plaintiff assigned any EAJA fees he would recover to his attorney. Id., Ex. 2 at 2 (client "assigns all [EAJA] fees to attorney and agrees that said fees are the property of attorney and may be paid directly to the attorney, whether awarded by the Court or agreed to by stipulation"). Plaintiff accordingly asks the court to direct payment of EAJA fees directly to his counsel, "upon verification that Plaintiff has no debt which qualifies for offset against the awarded fees pursuant to the U.S. Treasury Offset Program." Doc. No. 25, Proposed Order. Plaintiff further proposes that the court order Defendant to notify him within 21 days if he owes any such debts. Id. Defendant objects to the form of the proposed order on the grounds that (1) EAJA fees belong to the Plaintiff, not his counsel; (2) it is the U.S. Treasury, not the Commissioner of Social Security, who will determine whether Plaintiff owes the Government a debt; and (3) the court lacks authority to order the Commissioner to disclose whether Plaintiff owes any debt. Doc. No. 28 at 2-4. Defendant also notes that Plaintiff may obtain this information directly from the Treasury Department. Doc. No. 28 at 3. At the hearing, counsel for Plaintiff stated that he had not obtained the information from the Treasury Department.

Courts in this district squarely support ...

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