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Robinson v. Berryhill

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

May 31, 2018

DENNIS J. ROBINSON, Plaintiff,
v.
NANCY A. BERRYHILL, Deputy Commissioner of the Social Security Administration for Operations, Defendant.

          ORDER ON PLAINTIFF'S CONTESTED MOTION FOR ATTORNEYS' 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. 5; Consent to Proceed Before a United States Magistrate Judge, Dkt. 6). This matter comes before the Court on plaintiff's contested motion for attorneys' fees and expenses pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412 (hereinafter “EAJA”) (see Dkt. 22; see also Dkts. 24, 25).

         Subsequent to plaintiff's success at obtaining a reversal of the decision of the Social Security Administration, defendant Commissioner challenged plaintiff's request for statutory attorneys' fees on the grounds that the requested fees are unreasonable given the circumstances of this case (see Response, Dkt. 24, p. 1 (citing 28 § U.S.C. 2412)).

         After considering and reviewing the record, including the Court's admonition that “[p]laintiff shall not include a lengthy recitation of background facts or medical evidence” except in context of specific errors alleged, the Court concludes that plaintiff has requested reimbursement for attorneys' fees that were not reasonably expended on the litigation. Therefore, plaintiff's fees for preparation of the Opening Brief should be reduced by 5 hours, for a total number of hours of 31.1[total 36.9 hours on opening brief Dkt. 22-3 page 2.].

         Plaintiff requests $7, 239.00 in total fees for the underlying litigation. Although the 3.1 paralegal hours reasonably were expended ($310), the 36.1 attorney hours were not reasonably expended. Plaintiff's request for attorneys' fees representing attorney work for $7, 549, should be reduced by 5 hours ($983.95) to $6, 565.05.

         Defendant does not object to plaintiff's request for $5.18 in expenses, which shall be granted. Plaintiff also requests additional hours for the time incurred defending the fee petition, which is denied because defendant's dispute with the fee was meritorious.

         Therefore, plaintiff's motion for fees and expenses is granted pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412 (“EAJA”) in the amount of $6, 565.05 in attorneys' fees and $5.18 for expenses.

         BACKGROUND and PROCEDURAL HISTORY

         On November 21, 2017, this Court issued an Order reversing and remanding this matter for further consideration by the Administration (see Dkt. 19).

         The Court found that the ALJ erred by failing to discuss the significant, probative evidence provided by a reviewing doctor, Dr. Phyllis N. Sanchez, Ph.D., who issued opinions directly relevant to the important findings providing the basis for the ALJ's ultimate decision regarding disability. Dkt. 19. This matter was reversed pursuant to 42 U.S.C. § 405(g) for further consideration due to the harmful error in the evaluation of such evidence (see Id. at 4-8).

         Subsequently, plaintiff filed a motion for EAJA attorneys' fees, to which defendant objected (see Dkt. 22). Defendant contends that the amount of hours incurred in this matter is unreasonable (Dkt. 24). Plaintiff filed a reply (see Dkt. 25).

         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 ...


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