United States District Court, W.D. Washington, Tacoma
ORDER ON PLAINTIFF'S CONTESTED MOTION FOR
ATTORNEY'S FEES PURSUANT TO THE EQUAL ACCESS TO JUSTICE
Richard Creatura, United States Magistrate Judge
Court has jurisdiction pursuant to 28 U.S.C. § 636(c),
Fed.R.Civ.P. 73 and Local Magistrate Judge Rule MJR 13
(see also Notice of Initial Assignment to a U.S.
Magistrate Judge and Consent Form, Dkt. 3; Consent to Proceed
Before a United States Magistrate Judge, Dkt. 4). This matter
comes before the Court on plaintiff's contested motion
for attorneys' fees pursuant to the Equal Access to
Justice Act, 28 U.S.C. § 2412 (hereinafter
“EAJA”). See Dkts. 42, 43, 44, 45.
to plaintiff's success at obtaining a reversal of the
decision of the Social Security Administration, defendant
Commissioner challenged plaintiff's request for statutory
attorneys' fees on the grounds that the number of hours
requested was excessive and that “plaintiff failed to
prevail on the central issue, namely ALJ bias.” Dkt.
44, pp. 2-3.
presented a novel argument in support of his request for
reversal and remand of the ALJ's decision denying him
Social Security disability benefits. The Court “paid
particular attention to [plaintiff's] argument, ”
which it construed as that the “ALJ is regularly
denying benefits to those persons wh[o] claimed mental
disabilities [and] who have been found disabled by the
Washington State Department of Social and Health
Services.” Dkt. 40, pp. 18, 20. Regarding this
contention, this Court concluded that “plaintiff has
not demonstrated that his sample is random, unbiased and
statistically significant.” Id. at 21
(citations omitted).This conclusion suggests that more work
needed to be completed on this argument of bias in order to
pursue it adequately, in contrast to defendant's argument
that plaintiff's attorney's hours incurred were
excessive. However, the fact that plaintiff's attorney
declares that the number of attorney hours incurred on this
case is approximately 150 hours, when fee petitions in
(otherwise) comparable social security cases often represent
fees for 20-40 hours of attorney time, calls into question
the economic viability of pursuit of this argument on bias.
Simply because the fees are statutorily reimbursed for
successful appeals of social security disability appeals does
not mean that any argument that is presented, no matter how
many hours, should be developed on the tab of taxpayers.
Especially where there are other viable arguments which could
lead to reversal and remand. Only fees reasonably incurred
should be awarded. Fees representing time spent pursuing
novel arguments requiring more than five times the average
time spent on similar cases are not reasonable. The Court
agrees that the fee request is excessive.
already reduced his fee request by approximately a third.
Therefore, although the Court concludes that the resultant
fee request should be reduced, it should be reduced only by
thirty percent, as opposed to the approximately seventy
percent reduction requested by defendant. Plaintiff should be
reimbursed for seventy hours of attorney time.
plaintiff's motion for fees and expenses is granted in
part pursuant to the Equal Access to Justice Act, 28 U.S.C.
§ 2412 (“EAJA”) in the amount of $13, 487.60
in fees, reflecting seventy attorney hours, at $192.68 per
hour. This still appears to be the largest fee awarded by
this Court for a social security appeal, by about twenty
does not object to plaintiff's request for reimbursement
for costs. Therefore, it is further ORDERED that costs in the
amount of $400.00 are to be awarded to plaintiff pursuant to
28 U.S.C. § 1920.
and PROCEDURAL HISTORY
November 2, 2016, Court issued an Order reversing and
remanding this matter for further consideration by the
Administration. See Dkt. 40.
Court concluded that the ALJ erred in evaluating the medical
evidence. Had the ALJ properly considered the medical
evidence, the residual functional capacity
(“RFC”) may have included additional limitations
(see id., p. 2). The Court also concluded that
plaintiff failed to meet his burden of establishing that the
ALJ demonstrated a generalized pattern of bias against
claimants like plaintiff (see id.). This matter was
reversed pursuant to sentence four of 42 U.S.C. § 405(g)
for further consideration due to the harmful error in the
evaluation of the medical evidence (see id.).
plaintiff filed a motion for EAJA attorney's fees, to
which defendant objected (see Dkt. 44). Defendant
does not contest that plaintiff is entitled to EAJA fees but
does “object to the reasonableness of the attorney time
requested because it is excessive” (id., p.
2). Plaintiff filed a reply (see Dkt. 45).
action brought by or against the United States, the EAJA
requires that "a court shall award to a prevailing party
other than the United States fees and other expenses . . . .
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).
to the United States Supreme Court, “the fee applicant
bears the burden of establishing entitlement to an award and
documenting the appropriate hours expended.”
Hensley v. Eckerhart, 461 U.S. 424, 437 (1983). The
government has the burden of proving that its positions
overall were substantially justified. Hardisty v.
Astrue, 592 F.3d 1072, 1076 n.2 (9th Cir. 2010),
cert. denied, 179 L.Ed.2d 1215, 2011 U.S. LEXIS 3726
(U.S. 2011) (citing Flores v. Shalala, 49 F.3d 562,
569-70 (9th Cir. 1995)). Further, if the government disputes
the reasonableness of the fee, then it also “has a
burden of rebuttal that requires submission of evidence to
the district court challenging the accuracy and
reasonableness of the hours charged or the facts asserted by
the prevailing party in its submitted affidavits."
Gates v. Deukmejian,987 F.2d 1392, 1397-98 ...