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. 5). This matter
comes before the Court on plaintiff's contested motion
for attorney's fees and costs pursuant to the Equal
Access to Justice Act, 28 U.S.C. § 2412 (hereinafter
“EAJA”) (see Dkts. 18, 19).
matter, the Court reversed the ALJ's written decision
based on new evidence submitted to the Appeals Council that
was not before the ALJ. Therefore, the ALJ was substantially
justified in her original findings in the written decision on
that issue. In addition, reasonable minds could differ
regarding other findings originally relied on by the Court.
Attorney's fees are provided pursuant to the Equal Access
to Justice Act only if the Administration's position was
not substantially justified.
as the Court has concluded that the Administration's
positions were substantially justified, plaintiff's
motion for attorney's fees and costs (Dkt. 18) is denied.
and PROCEDURAL HISTORY
24, 2017, this Court issued an Order reversing and remanding
this matter for further consideration by the Administration
(see Dkt. 16).
Court found that the ALJ erred in reviewing the medical
evidence when failing to find that plaintiff's alleged
fibromyalgia was a medically determinable impairment (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 plaintiff's
alleged fibromyalgia (see id.).
plaintiff filed a motion for EAJA attorney's fees, to
which defendant objected (see Dkt. 18). Defendant
asserts that “the government's position was
substantially justified. Accordingly, the Commissioner asks
the Court to deny Kerley's motion for fees and
costs.” (Dkt. 19, p. 1, 5-6). Plaintiff did not file a
reply (see Dkt.).
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)). A finding that an Administrative
finding is not based on substantial evidence is a good
indication of a lack of substantial justification. See
Meier v. Colvin, 727 F.3d 867, 872 (9th Cir. 2013)
(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.
16). 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.
Court notes that the fact that the Administration did not
prevail on the merits does not compel the conclusion that its
position was not substantially justified. See Kali v.
Bowen, 854 F.2d 329, 334 (9th Cir. 1988)) (citing
Oregon Envtl. Council v. Kunzman, 817 F.2d 484, 498 (9th
Cir. 1987)). The Court also notes that when determining the
issue of substantial justification, the Court reviews only
the “issues that led to remand” in determining if
an award of fees is appropriate. See Toebler v.
Colvin, 749 F.3d 830, 834 (9th Cir. 2014)). Hence, here,
we have the issue of the ALJ's failure to find that