Cha v. Commissioner of Social Security

Filing 32

ORDER granting 31 Motion for Attorney Fees signed by Magistrate Judge Carolyn K. Delaney on 4/22/14. (Kaminski, H)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MEE CHA,

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No. 2:13-cv-0179 CKD
Plaintiff,

v.

ORDER

CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.

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Plaintiff‟s motion for an award of attorneys‟ fees under the Equal Access to Justice Act

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(EAJA), 28 U.S.C. § 2412(d)(1), is pending before the court. Plaintiff seeks fees in the amount of

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$4,722.25 based on 25.25 hours at the rate of $187.02 per hour for attorney time. No opposition

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has been filed.

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A. Substantial Justification

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The EAJA provides that the prevailing party in a civil action against the United States

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may apply for an order for attorneys‟ fees and expenses within thirty days of final judgment in the

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action. An applicant for Social Security benefits receiving a remand under sentence four of 42

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U.S.C. § 405(g) is a prevailing party, regardless of whether the applicant later succeeds in

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obtaining the requested benefits. Shalala v. Schaefer, 509 U.S. 292 (1993). In this case, the

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matter was remanded under sentence four for reinstatement of plaintiff‟s benefits. ECF No. 30.
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Plaintiff thus is entitled to an award of fees under the EAJA. The court must allow the fee award

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unless it finds that the position of the United States was substantially justified. Flores v. Shalala,

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49 F.3d 562, 568-69 (9th Cir. 1995).

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The burden of establishing substantial justification is on the government. Gutierrez v.

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Barnhart, 274 F.3d 1255, 1258 (9th Cir. 2001). In Pierce v. Underwood, 487 U.S. 552 (1988), the

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Supreme Court defined “substantial justification” as „justified in substance or in the main‟ -- that

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is, justified to a degree that could satisfy a reasonable person. That is no different from the

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„reasonable basis in both law and fact‟ formulation adopted by the Ninth Circuit and the vast

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majority of other Courts of Appeals that have addressed this issue. Id. at 565. A position does

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not have to be correct to be substantially justified. Id. at 566 n.2; see also Russell v. Sullivan, 930

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F.2d 1443, 1445 (9th Cir. 1991), receded from on other grounds, Sorenson v. Mink, 239 F.3d

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1140 (9th Cir. 2001); Lewis v. Barnhart, 281 F.3d 1081, 1083 (9th Cir. 2002).

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In determining substantial justification, the court reviews both the underlying

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governmental action being defended in the litigation and the positions taken by the government in

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the litigation itself. Barry v. Bowen, 825 F.2d 1324, 1331 (9th Cir. 1987), disapproved on other

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grounds, In re Slimick, 928 F.2d 304 (9th Cir. 1990). Where the underlying government action

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was not substantially justified, it is unnecessary to determine whether the government's litigation

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position was substantially justified. Andrew v. Bowen, 837 F.2d 875, 880 (9th Cir. 1988).

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Defendant has filed no opposition to the pending motion for fees. The court finds the position of

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the United States was not substantially justified. Fees under the EAJA will therefore be awarded.

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B. Reasonable Fee

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The EAJA directs the court to award a reasonable fee. In determining whether a fee is

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reasonable, the court considers the hours expended, the reasonable hourly rate, and the results

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obtained. See Commissioner, INS v. Jean, 496 U.S. 154 (1990); Hensley v. Eckerhart, 461 U.S.

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424 (1983); Atkins v. Apfel, 154 F.3d 986 (9th Cir. 1998). Plaintiff here obtained a remand

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reinstating her benefits. With respect to plaintiff‟s counsel‟s time reviewing the transcript,

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briefing on the motion for summary judgment and other tasks itemized in counsel‟s schedule of

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hours, the court has determined the hours claimed are reasonable. The rate claimed is also
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reasonable. Plaintiff will therefore be awarded the full amount requested. The EAJA award must

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be made by this court to plaintiff, and not to counsel. See Astrue v. Ratliff, __ U.S. __, 130 S. Ct.

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2521 (2010).

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Accordingly, IT IS HEREBY ORDERED that fees pursuant to the EAJA are awarded to

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plaintiff in the amount of $4,722.25.

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Dated: April 22, 2014

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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cha.eaja

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