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Campbell v. Berryhill

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

May 19, 2017

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 attorney's fees pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412 (hereinafter “EAJA”). See Dkts. 14, 15, 16.

         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 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. 2412(b)).

         After 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.

         Therefore, 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.


         On 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).

         Subsequently, 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).


         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 (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.


         In this 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).

         The 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 ...

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