United States District Court, W.D. Washington, Tacoma
ORDER ON PLAINTIFF'S CONTESTED MOTION FOR
ATTORNEY'S FEES, EXPENSES AND COSTS PURSUANT TO THE EQUAL
ACCESS TO JUSTICE ACT
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 attorney's fees pursuant to the Equal Access to
Justice Act, 28 U.S.C. § 2412 (hereinafter
“EAJA”). See Dkts. 14, 15, 16.
to plaintiff's success at obtaining a reversal of the
decision of the Social Security Administration, defendant
Commissioner challenged plaintiff's request for statutory
attorney's fees on the grounds that the requested fees
are unreasonable given the circumstances of this case.
See Response, Dkt. 15, p. 2 (citing 28 § U.S.C.
considering and reviewing the record, including
plaintiff's Motion for Attorney Fees and Costs under
EAJA, and the attached time and expense sheet (see
Dkt. 14, pp. 2-3), as well as the excellent results obtained
by plaintiff's counsel, the Court concludes that
plaintiff's fee request is reasonable.
plaintiff's motion for fees, costs and expenses is
granted pursuant to 28 U.S.C. § 1920 and the EAJA in the
amount of $7, 475.98 ($6, 743.80 for the original request,
and $732.18 for fees representing 3.8 hours replying to
defendant's challenge to the requested fees (at
$192.68/hour)) in attorney's fees, $10.68 for expenses
and $400 for costs.
and PROCEDURAL HISTORY
December 19, 2016 this Court issued an Order reversing and
remanding this matter for further consideration by the
Administration (see Dkt. 12). The Court
found that the ALJ only made a “passing reference to
plaintiff's work as ‘not comparable to those of an
unimpaired individual, '” and hence, “the
Court [could not] adequately determine whether the ALJ
properly evaluated plaintiff's self-employment at step
one” (see id., p. 2). This matter was reversed
pursuant to sentence four of 42 U.S.C. § 405(g) for
further consideration due to this harmful error (see
id., pp. 12-13).
plaintiff filed a motion for EAJA attorney's fees, to
which defendant objected (see Dkt. 14). Defendant
contends that the 35 hours requested are unreasonable (Dkt.
15, p. 4). Plaintiff filed a reply (see Dkt. 16).
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 (9th
Cir. 1992) (citations omitted). The Court has an independent
duty to review the submitted itemized log of hours to
determine the reasonableness of hours requested in each case.
See Hensley, supra, 461 U.S. at 433, 436-37.
matter, plaintiff clearly was the prevailing party because he
received a remand of the matter to the Administration for
further consideration (see Order on Complaint, Dkt.
12). In order to award a prevailing plaintiff attorney fees,
the EAJA also requires a finding that the position of the
United States was not substantially justified. 28 U.S.C.
§ 2412(d)(1)(B). Defendant explicitly conceded that the
government's position was not substantially justified,
and defendant argues that plaintiff's recovery for
attorney's fees should be reduced, not eliminated
(see Defendant's Response to Plaintiff's
EAJA Motion for Fees, Dkt. 14, p. 2).
Court agrees with defendant's concession (see
id.). This conclusion is based on a review of the
relevant record, including the government's
administrative and litigation positions regarding the step
one evaluation. For these reasons, and based on a review of
the relevant record, the Court concludes that the
government's position in this matter as a whole was not