Kephart v. Commissioner of Social Security Administration

Filing 25

ORDER granting 24 stipulation for attorney's fees. Plaintiff is awarded attorney's fees under the Equal Access to Justice Act in the amount of $5,923.01. (See attached Order for additional information.) Signed by Senior Judge James A. Teilborg on 12/17/2018. (RMW)

1

WO

2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

Charles William Kephart,

No. CV-18-08022-PCT-JAT

Plaintiff,

10
11

v.

12

Commissioner
Administration,

ORDER

13
14

of

Social

Security

Defendant.

15

Pending before the Court is a stipulation of the parties that Plaintiff be awarded

16

attorney’s fees under the Equal Access to Justice Act (“EAJA”). In the stipulation, the

17

Government states: “This stipulation constitutes a compromise settlement of Plaintiff’s

18

request for attorney fees under the EAJA, and does not constitute an admission of liability

19

on the part of the Commissioner under the EAJA.” (Doc. 24).

20

The Ninth Circuit Court of Appeals has explained:

21

Pursuant to the EAJA, we are required to award [Plaintiff] fees and
other expenses incurred in connection with his civil action unless we find
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 test for determining whether the Secretary’s position was
substantially justified under the EAJA is whether the position had a
reasonable basis in both law and fact—that is, whether it was justified “to a
degree that could satisfy a reasonable person.” Pierce v. Underwood, 487
U.S. 552, 565 (1988); see also Barry v. Bowen, 825 F.2d 1324, 1330 (9th
Cir. 1987). The burden is on the Secretary to prove that his position was
substantially justified. Id.

22
23
24
25
26
27
28

Russell v. Sullivan, 930 F.2d 1443, 1445 (9th Cir. 1991).
The Government’s failure to oppose fees, but simultaneous disclaimer as to

1

Plaintiff’s entitlement to fees, puts the Court in a difficult position. This case was

2

remanded by stipulation of the parties (Docs. 21 and 22), and this Court has never evaluated

3

either party’s positions.

4

Nonetheless, applying the test as articulated in Russell, the Court finds that the

5

Government has failed to prove that its position was substantially justified. 930 F.2d at

6

1445. Accordingly, the Court finds that Plaintiff is entitled to fees. Therefore,

7

IT IS ORDERED that the stipulation for attorney’s fees (Doc. 24) is granted.

8

Plaintiff is awarded attorney’s fees under the Equal Access to Justice Act in the amount of

9

$5,923.01.

10

Dated this 17th day of December, 2018.

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

-2-