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Berg v. Berryhill

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

May 22, 2018

JULIE BERG, Plaintiff,
v.
NANCY A BERRYHILL, Deputy Commissioner of Social Security for Operations, Defendant.

          ORDER ON MOTION FOR ATTORNEY'S FEES

          David W. Christel United States Magistrate Judge

         Plaintiff Julie Berg filed a Motion for Attorney Fees (“Motion for Fees”), seeking attorney's fees pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412 (“EAJA”). Dkt. 18. Specifically, Plaintiff seeks attorney's fees pursuant to § 2412(d) of the EAJA, as well as attorney's fees pursuant to the bad faith exception in § 2412(b) due to Defendant's “Motion to Alter the Judgment.” Id. Defendant objects to the Motion for Fees, contending Defendant's position in the underlying case was substantially justified and Defendant did not act in bad faith. Dkt. 19.

         The Court concludes Defendant's position was not substantially justified. Further, the Court finds the Motion to Alter the Judgment resulted in an inefficient use of judicial resources. However, the record does not reflect Defendant filed the Motion to Alter the Judgment in bad faith. Therefore, Plaintiff's Motion for Fees (Dkt. 18) is granted-in-part.

         BACKGROUND

         On February 7, 2018, the Court found the Administrative Law Judge (“ALJ”) erred by failing to find Plaintiff's migraines were a severe impairment and failing to consider the limitations associated with Plaintiff's migraines throughout the sequential evaluation process. Dkt. 13. Accordingly, the Court reversed the ALJ's decision and remanded the case to the Social Security Administration (“Administration”) for further consideration pursuant to sentence four of 42 U.S.C. § 405(g). Id.; see also Dkt. 14.

         On February 15, 2018, Defendant filed a “Motion to Alter the Judgment” pursuant to Federal Rule of Civil Procedure 59(e). Dkt. 15. Plaintiff filed a Response opposing the Motion to Alter the Judgment on February 16, 2018. Dkt. 16. On March 27, 2018, the Court denied the Motion to Alter the Judgment. Dkt. 17.

         Plaintiff filed the present Motion for Fees on April 26, 2018. Dkt. 18. On May 4, 2018, Defendant filed a Response. Dkt. 19. Plaintiff filed a Reply on May 11, 2018. Dkt. 20.

         DISCUSSION

         In any action brought by or against the United States, the EAJA states “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 its positions overall were substantially justified. Hardisty v. Astrue, 592 F.3d 1072, 1076 n.2 (9th Cir. 2010) (citing Flores v. Shalala, 49 F.3d 562, 569-70 (9th Cir. 1995)). Further, if the government disputes the reasonableness of the fee, it “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, 461 U.S. at 433, 436-37.

         I.Defendant's Position and Conduct

         The parties dispute whether Defendant's position in the underlying case was substantially justified. See Dkt. 18, pp. 4-5; Dkt. 19, pp. 1-3. The parties also dispute whether Defendant filed the Motion to Alter the Judgment in bad faith. See Dkt. 18, pp. 5-10; Dkt. 19, pp. 3-5.

         A. Substantial Justification

         In this matter, Plaintiff was the prevailing party because she received a remand to the Administration for further consideration. See Dkt. 13, 14. To award attorney's fees to a prevailing plaintiff, 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 Supreme Court has held “substantially justified” means “‘justified in substance or in the main' - that is, justified to a degree that could satisfy a reasonable person.” Pierce v. Underwood, 487 U.S. 552, 565 (1988). A “substantially justified position must have a reasonable basis both in law and fact.” Gutierrez v. Barnhart, 274 F.3d 1255, 1258 (9th Cir. 2001) (citing Pierce, 487 U.S. at 565; Flores, 49 F.3d at 569). The Court “‘must focus on two questions: first, whether the government was substantially justified in taking its original action; and second, whether the government was substantially justified in defending the validity of the action in court.'” Id. at 1259 (quoting Kali v. Bowen, 854 F.2d 329, 332 (9th Cir. 1988)). Thus, for the government to prevail, it must establish both the ALJ's underlying conduct and its litigation position in defending the ALJ's error were substantially justified. Id. “[I]f ‘the government's underlying position was not substantially justified, '” the Court must award fees and does not have to address whether the government's litigation ...


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