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Smith v. Berryhill

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

March 9, 2018

STEVEN M. SMITH, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.

          ORDER ON PLAINTIFF'S CONTESTED MOTION FOR ATTORNEY'S FEES PURSUANT TO THE EQUAL ACCESS TO JUSTICE ACT

          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. 6; Consent to Proceed Before a United States Magistrate Judge, Dkt. 7). 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 Dkt. 33; see also Dkts. 34, 35).

         Subsequent to plaintiff's success at obtaining a reversal of the decision of the Social Security Administration, defendant Acting Commissioner challenged plaintiff's request for statutory attorney's fees on the grounds that defendant's position in this matter was justified in substance and had a reasonable basis in fact and law.

         Because this Court disagrees, and because the requested fees are reasonable, plaintiff's motion for statutory fees should be granted. Dkt. 33.

         BACKGROUND and PROCEDURAL HISTORY

         On December 8, 2014, this Court issued an Order affirming the Social Security Administration's decision to deny benefits (see Dkt. 23). Plaintiff appealed this decision to the Ninth Circuit Court of Appeals on February 6, 2015 (Dkt. 25). On August 3, 2017, the Court of Appeals issued a Memorandum which reversed and remanded this matter to the Administration for further proceedings (Dkt. 28).

         The Ninth Circuit Court of Appeals found that the ALJ erred when reviewing the medical evidence and when failing to credit fully medical opinions (see id., pp. 2, 6). This matter was reversed pursuant to sentence four of 42 U.S.C. § 405(g) for further consideration due to the harmful errors (see id.).

         Subsequently, plaintiff filed a motion for EAJA attorney's fees, to which defendant objected (see ECF Nos. 33, 34). Defendant asserts that her position was substantially justified and that no attorney fees should be awarded under the EAJA. Dkt. 34, pp. 3-4). Plaintiff filed a reply (see ECF No. 35).

         STANDARD OF REVIEW

         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.

         DISCUSSION

         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 re: Mandate, Dkt. 30). 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).

         The 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 ...


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