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Cope v. Berryhill

United States District Court, W.D. Washington, Tacoma

May 10, 2017

RICHARD COPE, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, [1]Defendant.


          J. Richard Creatura, United States Magistrate Judge

         This 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.

         Subsequent 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.

         Plaintiff 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.

         Plaintiff 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.

         Therefore, 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 hours.

         Defendant 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.


          On November 2, 2016, Court issued an Order reversing and remanding this matter for further consideration by the Administration. See Dkt. 40.

         The 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.).

         Subsequently, 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).


         In any 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).

         According 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 ...

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