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Scott v. Berryhill

United States District Court, W.D. Washington

March 14, 2018

NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.




         This matter comes before the Court on Plaintiff's Motion for Attorney Fees. Dkt. #20. The Commissioner opposes the motion on the basis that the hours requested are unreasonable. Dkt. #22. For the reasons set forth below the Court disagrees with the Commissioner, and GRANTS Plaintiff's motion.


         Plaintiff protectively filed a Disability Insurance Benefits (“DIB”) application in December 2012, alleging disability beginning March 23, 2009. AR 156. Plaintiff remained insured for DIB through December 31, 2011 and was required to establish disability on or prior to that “date last insured” (DLI). See 20 C.F.R. §§ 404.131, 404.321. Her application was denied initially and on reconsideration.

         On August 17, 2015, Robert F. Campbell issued a decision finding plaintiff not disabled from the alleged onset date through the DLI. AR 19-30. Plaintiff timely appealed. The Appeals Council denied plaintiff's request for review on March 7, 2017 (AR 1-6), making the ALJ's decision the final decision of the Commissioner. Plaintiff appealed this final decision of the Commissioner to this Court. Dkt. #3.

         In response to Plaintiff's Complaint and Opening Brief, the government agreed that the ALJ had erred in a number of ways and that Plaintiff was entitled to judgment. Dkt. #12. However, the government disagreed with Plaintiff on the terms of remand and the remedy - whether the Court should remand the case for further administrative proceedings or for a finding of disability and payment of benefits. Id. Plaintiff filed a Reply, asserting that payment of benefits was the appropriate remedy. Dkt. #16.

         On November 15, 2017, this Court issued an Order reversing the ALJ's decision and remanding for further administrative proceedings rather that for an award of benefits. Dkt. #18. The instant motion followed.


         The EAJA provides in relevant part:

Except as otherwise specifically provided by statute, a court shall award to a prevailing party other than the United States fees and other expenses, in addition to any costs awarded pursuant to subsection (a), incurred by that party in any civil action (other than cases sounding in tort), including proceedings for judicial review of agency action, brought by or against the United States in any court having jurisdiction of that action, 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). Thus, to be eligible for EAJA attorney fees: (1) the claimant must be a “prevailing party”; (2) the government's position must not have been “substantially justified”; and (3) no “special circumstances” must exist that make an award of attorney fees unjust. Commissioner, Immigration and Naturalization Serv. v. Jean, 496 U.S. 154, 158, 110 S.Ct. 2316, 110 L.Ed.2d 134 (1990).

         The United States Supreme Court has held that “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, 103 S.Ct. 1933, 76 L.Ed.2d 40 (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, 563 U.S. 991, 131 S.Ct. 2443, 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 case, Defendant does not dispute that Plaintiff is entitled to an award of fees. Dkt. #22 at 2. Instead, Defendant objects to the reasonableness of the fees requested, “in light of Plaintiff's refusal to accept Defendant's settlement offer and her unsuccessful attempt to litigate for greater relief than was offered by Defendant.” Id. Therefore, all that remains for this Court is to determine the amount of a reasonable fee. See 28 U.S.C. § 2412(b); Hensley, supra, 461 U.S. at 433, 436-37; see also Roberts v. Astrue, 2011 U.S. Dist. LEXIS 80907 (W.D. Wash. 2011), adopted by 2011 U.S. Dist. LEXIS 80913 (W.D. Wash. 2011). Once the court determines that a plaintiff is entitled to a reasonable fee, “the amount of the fee, of course, must be determined on the facts of each case.” Hensley, supra, 461 U.S. at 429, 433 n.7. According to the U.S. ...

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