Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Powell v. Berryhill

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

August 3, 2018

CURTIS POWELL, Plaintiff,
v.
NANCY A BERRYHILL, Deputy Commissioner of Social Security for Operations, Defendant.

          ORDER GRANTING MOTION FOR ATTORNEY'S FEES

          David W. Christel United States Magistrate Judge

         Plaintiff filed a “Motion for Award of EAJA Fees and Expenses” (“Motion”), seeking attorney's fees pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412 (“EAJA”). Dkt. 18. Defendant objects to the Motion, contending Defendant's position in the underlying case was substantially justified. Dkt. 19.

         The Court concludes Defendant's position was not substantially justified. Accordingly, Plaintiff's Motion (Dkt. 18) is granted.

         BACKGROUND

         On May 3, 2018, the Court found the ALJ erred by failing to fully and fairly develop the record. Dkt. 16. The Court found the ALJ's error was harmful, 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.

         On June 26, 2018, Plaintiff filed the present Motion. Dkt. 18. Defendant filed a Response on July 5, 2018. Dkt. 19. Plaintiff filed a Reply on July 12, 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 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, 461 U.S. at 433, 436-37.

         I. Substantially Justified

         In this matter, Plaintiff was the prevailing party because he received a remand of the matter to the Administration for further consideration. See Dkts. 16, 17. To award a prevailing plaintiff attorney's fees, the EAJA also requires finding 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.” Guiterrez 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 position was justified. Tobeler v. Colvin, 749 F.3d 830, 832 (9th Cir. 2014) (quoting Meier v. Colvin, 727 F.3d 867, 872 (9th Cir. 2013)). The Court notes the Administration does not have to prevail on the merits for the Court to conclude the Administration's position was substantially justified. See Kali, 854 F.2d at 334.

         Here, the Court concluded the ALJ erred when he failed to fully and fairly develop the record. Dkt. 16. Specifically, the Court found the ALJ failed to fully and fairly develop the record because he afforded significant weight to medical opinion evidence from Dr. Eugene Kester, M.D., yet failed to follow Dr. Kester's recommendation that Plaintiff undergo another consultative examination. Id. at 5. The Court also found the ALJ's error harmful. Id. at 6-7. Due to the ALJ's harmful error, the Court reversed the ALJ's decision denying benefits and remanded the case for further proceedings. Id.

         This is 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. Further, there are no special circumstances that render an EAJA award unjust.

         The Court is not persuaded by Defendant's Response to the Motion. Dkt. 19. Rather, Defendant is attempting to re-litigate issues raised ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.