United States District Court, W.D. Washington, Tacoma
ORDER GRANTING PLAINTIFF'S MOTION FOR
ATTORNEY'S FEES UNDER 28 U.S.C. §2412(D)
J. BRYAN UNITED STATES DISTRICT JUDGE
MATTER comes before the Court on Plaintiff's Motion for
Attorney's Fees Under 28 U.S.C. §2412(d). The Court
has considered the motion and the remainder of the file
motion raises the question of whether Plaintiff is entitled
to attorney's fees pursuant to the Equal Access to
Justice Act (EAJA), and if so, what amount should be awarded.
Whether Plaintiff is entitled to attorney's
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). The term “position of the United
States” refers to the positions taken both by the
Social Security Administration (SSA) in the underlying action
and the government in this action. Hardisty v.
Astrue, 592 F.3d 1072, 1076 (9th Cir. 2010).
The government has the burden to show that its position was
substantially justified, which means “justified in . .
. both law and fact.” Meier v. Colvin, 727
F.3d 867, 870 (9th Cir. 2013) (internal quotations omitted).
The fact that the government did not prevail on the merits
does not compel the conclusion that its position was not
substantially justified, but “it will be only a
‘decidedly unusual case in which there is substantial
justification under the EAJA even though the agency's
decision was reversed as lacking in reasonable, substantial
and probative evidence in the record.” Meier,
727 F.3d at 872 (extended citations omitted).
challenged the SSA non-disability decision by raising two
primary issues: (1) the ALJ's rejection of two treating
physicians, Drs. Khaleeq and Quinci, and (2) the ALJ's
Step 5 finding that there are a significant number of jobs in
the national economy. Dkt. 11 at 1. On the first issue, the
Court finds that the ALJ's decision was substantially
justified, although erroneous. See discussion, Dkt.
14 at 9-17. The Court finds that the second issue raises a
position of the SSA that was not substantially justified. The
SSA erred where both the ALJ (post-hearing) and the
administrative appellate court disregarded Plaintiff's
challenge to the Vocational Expert's methodology (and,
ultimately, the conclusion) for determining the number of
occupations in the national economy. The ALJ's
methodology has facial flaws, made plain by the declaration
of Dr. Amberly Ruck. See discussion, Dkt. 14 at
5:15-6:4; AR 525, 526, 556-558.
not the exceptional case where the subtle differences between
the substantial evidence and substantial justification
standards merit remand and reversal without awarding attorney
fees and costs. Instead, this Court's “holding that
the agency's decision ... was unsupported by substantial
evidence is . . . a strong indication that the
‘position of the United States' ... was not
substantially justified[.]” Meier, 727 F.3d at
872. Defendant has also made no showing that there are
special circumstances that render an EAJA award unjust.
Accordingly, the Court should award Plaintiff attorney's
fees and expenses.
Amount to be awarded.
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
Court has an independent duty to review the submitted
itemized log of hours to determine the reasonableness of
hours requested in each case. See id. at 433,
436-37. 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.” Id. at 429, 433 n.7. “[T]he most
useful starting point for determining the amount of a
reasonable fee is the number of hours reasonably expended on
the litigation multiplied by a reasonable hourly rate.”
Id. at 433.
requests $4, 624.42 in attorney's fees, $400 in costs,
and an additional $117.57 in attorney's fees for
preparation of this motion. Dkt. 19 at 3. Plaintiff billed
24.20 hours total for this case and charges an hourly rate of
$195.95. Id.; Dkt. 17-1.
does not appear to challenge the reasonableness of the fees.
See Dkt. 18.
request for attorney's fees and expenses totaling $4,
741.99 is reasonable and should be awarded.
Plaintiff's Motion for Attorney's Fees under 28
U.S.C. §2412 (Dkt. 17) is HEREBY GRANTED.
is awarded $4, 341.99 in attorney's fees and $400 in
costs pursuant to the EAJA and consistent with Astrue v.
Ratliff, 130 S.Ct. 2521, 2524 (2010). Plaintiff's
award is subject to any offset allowed pursuant to the
Department of Treasury's Offset Program. See id.
at 2528. The check for EAJA fees ...