United States District Court, E.D. California
JAYLEON J. SILAS-FOREMAN, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.
ORDER
ALLISON CLAIRE, UNITED STATES MAGISTRATE JUDGE
Plaintiff
Jayleon J. Silas-Foreman commenced this social security
action on May 30, 2018. ECF Nos. 1-3.[1] On June 19, 2019, the
parties stipulated to the remand of this case to the
Commissioner. ECF Nos. 28, 29. Presently pending before the
court is plaintiff's motion for $6, 891.67 in
attorneys' fees pursuant to the Equal Access to Justice
Act (“EAJA”). ECF No. 31. The Commissioner filed
an opposition to plaintiff's motion, and plaintiff filed
a reply brief. ECF Nos. 32, 34. After considering the
parties' briefing and the applicable law, the court
grants plaintiff's motion for EAJA fees.
The
EAJA provides, in part, that:
Except as otherwise specifically provided by statute, a court
shall award to a prevailing party other than the United
States fees and other expenses, in addition to any costs
awarded pursuant to subsection (a), incurred by that party in
any civil action (other than cases sounding in tort),
including proceedings for judicial review of agency action,
brought by or against the United States in any court having
jurisdiction of that action, unless the court finds that the
position of the United States was substantially justified or
that special circumstances make an award unjust.
A party seeking an award of fees and other expenses shall,
within thirty days of final judgment in the action, submit to
the court an application for fees and other expenses which
shows that the party is a prevailing party and is eligible to
receive an award under this subsection, and the amount
sought, including an itemized statement from any attorney or
expert witness representing or appearing in behalf of the
party stating the actual time expended and the rate at which
fees and other expenses were computed. The party shall also
allege that the position of the United States was not
substantially justified. Whether or not the position of the
United States was substantially justified shall be determined
on the basis of the record (including the record with respect
to the action or failure to act by the agency upon which the
civil action is based) which is made in the civil action for
which fees and other expenses are sought.
The court, in its discretion may reduce the amount to be
awarded pursuant to this subsection, or deny an award, to the
extent that the prevailing party during the course of the
proceedings engaged in conduct which unduly and unreasonably
protracted the final resolution of the matter in controversy.
28 U.S.C. § 2412(d)(1)(A)-(C).
Here,
the Commissioner does not dispute that plaintiff is a
prevailing party, because he successfully obtained a remand
for further proceedings under sentence four of 42 U.S.C.
§ 405(g). Shalala v. Schaefer, 509 U.S. 292,
300-02 (1993). Furthermore, plaintiff's application for
EAJA fees is timely, because it was filed within thirty days
of final judgment in this action.[2]Nevertheless, the
Commissioner argues that plaintiff is not entitled to an
award of fees under the EAJA because an award under the
circumstances of this case would be unjust. ECF No. 32 at 2
3, citing 28 U.S.C.A. §§ 2412(d)(1)(A),
and 2412(d)(2)(A). The Commissioner argues that
“special circumstances militate against an award of
attorney fees because Plaintiff and his attorney were
uncooperative with the agency's efforts to develop the
record.” ECF No. 32 at 7. Specifically, the
Commissioner asserts that counsel has represented plaintiff
since he was a minor, that plaintiff failed to attend several
scheduled consultative examinations during counsel's
representation both during periods of incarceration and
freedom, and that while “[p]laintiff was incarcerated,
it was incumbent upon counsel to advocate for attending
consultative examinations.” Id. at 8.
Plaintiff's
counsel submitted an untimely reply brief arguing that he has
never represented plaintiff before the Commissioner or when
plaintiff was a minor, and that his representation began in
September of 2014. ECF No. 34 at 3-4. Counsel states that
attorney Andrew Ragnes, who has worked for counsel as a law
clerk since 2011, independently represented plaintiff through
his own private practice since 2007. Id. at n.3. Mr.
Ragnes submitted a sworn declaration detailing his
representation and stating that he had “no knowledge of
any CE requests” and that, despite being
plaintiff's designated representative on all claims, he
was “not provided notice” of any scheduled exams.
ECF No. 33 at 4. Mr. Ragnes further stated that it appears
his client never got any such notices, which may have been
sent to his aunt but also appear to have been inaccurately
addressed. Id. Plaintiff's named counsel, Robert
Weems, asserts that he began to represent plaintiff in
September of 2014. ECF No. 34 at 3.
In
light of the declaration of Mr. Ragnes and plaintiff's
counsel's assertion that his representation of plaintiff
did not begin until 2014, the undersigned does not find that
special circumstances warrant denial of EAJA fees. The
special circumstances provision of the EAJA “gives the
court discretion to deny awards where equitable
considerations dictate an award should not be made.”
Scarborough v. Principi, 541 U.S. 401, 423 (2004),
quoting H.R.Rep. No. 96-1418, p. 11 (1980). The two
considerations relevant to that determination are: “(1)
whether the award of fees would further the congressional
purpose in adopting the attorney's fees statute; and, (2)
the balance of equities.” Seattle School District
No. 1 v. State of Washington, 633 F.2d 1338, 1348 (9th
Cir. 1980).
The
Commissioner's central argument is that plaintiff missed
six consultative examinations. ECF No. 32 at 3,
citing Administrative Record (“AR”)
301-314. The AR reflects notes regarding missed exams on
3/1/2010, 1/25/2010, 1/4/2010, 12/30/2009, 12/28/2009,
12/23/2009, 12/21/2009. AR 301-314. The Commissioner also
attached an exhibit showing two additional missed exams. ECF
No. 32-2. Notes from November and December of 2015 indicate
an examiner was unable to reach plaintiff, but show no
indication that counsel was contacted at any point. ECF No.
32-2 at 12. Notes from June of 2014 indicate plaintiff missed
a hearing because he was in jail, and there is no indication
counsel was contacted. Id. at 13. Under the
circumstances, in light of counsel's testimony that
representation did not begin until 2014 and that
counsel's law clerk, though involved with the plaintiff
since 2011, was never alerted to the scheduling of
consultative exams, the court concludes that an award of fees
both furthers the congressional purpose of the EAJA and is
justified in view of the equities in this case.
The
Commissioner also argues that plaintiff's counsel's
fee request is not reasonable because plaintiff's billing
was duplicative, particularly in light of Mr. Ragnes'
prior representation of plaintiff. ECF No. 32 at 11. The
Commissioner takes issue with billing for items such as
record review, where not much evidence had changed.
Id. The court is not persuaded by the
Commissioner's arguments here; in light of the length of
time over which plaintiff's interactions with the
Commissioner took place, it is reasonable, for example, that
counsel would have to spend time reviewing the record at the
end of 2018 (even though there had been no substantial
changes since 2015) in order to competently draft a statement
of facts. See Id. The court will not reduce the
requested fees.
In
light of the foregoing, the court will award plaintiff EAJA
attorneys' fees in the full amount of $6, 891.67. The
court notes that plaintiff has executed an assignment of EAJA
fees to plaintiff's counsel. (ECF No. 31-3.) However, the
EAJA award must be made by this court to plaintiff, and not
to counsel. See Astrue v. Ratliffe, 130 S.Ct. 2521
(2010). Nevertheless, if the government determines that
plaintiff ...