Roberts v. Colvin

Filing 36

ORDER. IT IS HEREBY ORDERED that Plaintiff's Application for Award of EAJA Fees and Costs (Doc. 32 ) is GRANTED. Signed by Magistrate Judge Timothy J. Cavan on 4/12/2021. (JDH)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
BILLINGS DIVISION
ANTON WOOD ROBERTS,

CV 16-158-BLG-TJC

Plaintiff,

ORDER

vs.
ANDREW SAUL, Commissioner of
Social Security
Defendant.

On March 29, 2018, this Court affirmed the decision of the Administrative
Law Judge (“ALJ”) in this matter. (Doc. 20.) Subsequently, a divided panel of the
Ninth Circuit reversed and remanded for further proceedings. (Doc. 28.) Plaintiff
now moves for an award of attorney’s fees and costs under the Equal Access to
Justice Act (“EAJA”), 28 U.S.C. § 2412(d). (Doc. 32.) Plaintiff seeks attorney’s
fees in the amount of $19,000.00 and costs of $905.00. (Id.) Defendant opposes
the request. (Doc. 34.)
Under the EAJA, a prevailing party is entitled to attorney’s fees unless the
government was “substantially justified” in its position. 28 U.S.C. §
2412(d)(1)(A). Defendant does not dispute that Plaintiff is the prevailing party.
Rather, Defendant opposes Plaintiff’s request for fees and costs on the basis that
the government’s position was substantially justified because there was a
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disagreement among the Ninth Circuit panel regarding the merits of Plaintiff’s
appeal. Defendant further argues Plaintiff has made no showing to justify costs in
this case. Alternatively, Defendant argues that even if the Court finds the Plaintiff
should be awarded fees, the amount of fees sought are unreasonable. Plaintiff
counters that the fact the panel was not unanimous does not provide a basis to find
substantial justification because the panel disagreed as to the application of the
law, not the facts.
For the reasons set forth herein, Plaintiff’s motion is GRANTED.
I.

LEGAL STANDARD
Generally, a presumption arises under the EAJA “that fees will be awarded

to prevailing parties . . . .” Flores v. Shalala, 49 F.3d 562, 567 (9th Cir. 1995).
The EAJA provides in relevant part:
[A] court shall award to a prevailing party other than the United States
fees and other expenses . . . incurred by that party in any civil action .
. . brought by or against the United States . . . 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).
The government bears the burden of proving its position was substantially
justified. Kali v. Bowen, 854 F.2d 329, 332 (9th Cir. 1988)). Substantially
justified means “justified to a degree that could satisfy a reasonable person.”
Pierce v. Underwood, 487 U.S. 552, 563 (1988). In other words, “to be
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substantially justified, the government’s position must have a reasonable basis both
in law and in fact.” Trujillo v. Berryhill, 700 Fed. Appx. 764, 765 (9th Cir. 2017)
(quoting Decker v. Berryhill, 856 F.3d 659, 663 (9th Cir. 2017).
In the social security context, “the position of the United States includes
both the government’s litigation position [in the civil action] and the underlying
agency action giving rise to the civil action.” Meier v. Colvin, 727 F.3d 867, 870
(9th Cir. 2013). A holding that an “agency’s decision was unsupported by
substantial evidence is a strong indication that the position of the United States was
not substantially justified.” Id. at 872 (internal quotations and citations omitted).
Indeed, “it will be only a ‘decidedly unusual case in which there is a substantial
justification under the EAJA even though the agency’s decision was reversed as
lacking in reasonable, substantial and probative evidence in the record.’”
Thangaraja v. Gonzales, 428 F.3d 870, 874 (9th Cir. 2005) (quoting Al-Harbi v.
INS, 284 F.3d 1080, 1085 (9th Cir. 2002).
The Ninth Circuit, however, “has never stated that every time this court
reverses and remands the ALJ’s decision for lack of substantial evidence the
claimant should be awarded attorney’s fees.” Campbell v. Astrue, 736 F.3d 867,
869 (9th Cir. 2013) (emphasis in original). For example, a disagreement within the
appellate panel may suggest that a finding of substantial justification is
appropriate. Gonzales v. Free Speech Coal., 408 F.3d 613, 619 (9th Cir. 2005)
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(recognizing that a split decision may be “an indicator of the reasonableness of the
government’s position”); Bay Area Peace Navy v. United States, 914 F.2d 1224,
1231 (9th Cir. 1990) (same).
The Ninth Circuit has indicated that the determination of substantial
justification in such social security cases, turns on whether the panel was divided
over a legal or factual question. In O’Neal v. Astrue, the court explained that
where the government defends an ALJ’s “basic and fundamental errors” or “failure
to comply with laws or regulations,” the defense lacks substantial justification.
O’Neal v. Astrue, 466 Fed.Appx. 614, 615 (9th Cir. 2012). “On the other hand,
where resolution of the case turns on the weight and evaluation of the evidence, . . .
the Commissioner’s defense of the ALJ’s findings ordinarily is substantially
justified.” Id.
In O’Neil, the Ninth Circuit determined that where a divided panel had
reversed an ALJ’s decision based on a differing interpretation of the evidence, the
district court did not abuse its discretion in finding the government’s position was
substantially justified. O’Neal, 466 Fed.Appx. at 615. See also Putz v. Astrue, 454
Fed.Appx. 632 (9th Cir. 2011) (affirming district court’s determination that the
government’s position was substantially justified where a prior Ninth Circuit panel
disagreed “on the ALJ’s assessment of the evidence and not on whether he
employed the correct decisional processes required by the Social Security
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Administration’s policies and regulations”); Albertson v. Berryhill, 723 Fed.Appx.
511 (9th Cir. 2018) (same).
In contrast, where courts have determined that the ALJ made a legal error,
they generally find the government’s position is not substantially justified. See e.g.
Cole v. Berryhill, 2018 WL 5808800, *2 (D. Mont. Nov. 6, 2018) (holding the
government’s defense of the ALJ’s decision was not substantially justified where
the ALJ made a “fundamental legal error” by discounting the claimant’s testimony
without identifying the specific evidence in the record that supported her
determination); Sanchez v. Astrue, 2012 WL 3257551, *3 (D. Az. Aug. 8, 2012)
(holding that because the ALJ’s error in failing to provide a sufficient explanation
of why the claimant’s impairments didn’t meet a listing, “was legal in nature and
did not turn on the weight and evaluation of the evidence” the government’s
position in defending the ALJ was not substantially justified).
II.

DISCUSSION
A.

Substantial Justification

Here, the Ninth Circuit panel divided over whether substantial evidence
supported the ALJ’s determination that Plaintiff’s statements about his symptoms
and limitations were not entirely credible. (Doc. 28.) The majority held the ALJ
impermissibly discounted Plaintiff’s testimony. (Id. at 2.) The majority found it
was legally improper for the ALJ to discount Plaintiff’s testimony for failing to
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adhere to his medication regimen because Plaintiff suffers from a mental illness.
(Id.) The majority also disagreed with the ALJ’s interpretation of the facts
concerning Plaintiff’s spending habits, seizure activity, and violent impulses. (Id.
at 3.) The dissent disagreed with the majority on all points. (Id. at 5-11.)
The first error cited by the majority was a legal error. The majority
explained:
If a claimant suffers from a mental illness, as Roberts does, a general
failure to adhere to prescribed medical care is not an adequate ground
for discounting the claimant’s testimony. See Nguyen v. Chater, 100
F.3d 1462, 1465 (9th Cir. 1996); see also Garrison v. Colvin, 759
F.3d 995, 1018 n.24 (9th Cir. 2014).
(Id. at 2.)
The dissent disagreed with the majority’s conclusion, stating: “[t]o the extent
the majority suggests that, as a matter of law, a failure to adhere to treatment is not
a proper basis for discounting the credibility of a claimant who suffers from mental
illness . . . there is not support for this view.” (Id. at 8.) The dissent went on to
discuss why the majority’s reliance on Nguyen and Garrison was incorrect in his
opinion. (Id. at 8-9.) This was clearly a disagreement as to the application of the
law, and not the factual basis of the ALJ’s credibility conclusion.
Although there was also a dispute among the panel regarding the ALJ’s
evaluation and interpretation of the evidence, at least one of the ALJ’s errors was
legal in nature. That is, the ALJ improperly relied upon factor that cannot be
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considered in discounting a claimant’s testimony where the claimant suffers from
mental illness. The Court, therefore, finds that the government’s position was not
substantially justified.
B.

Reasonableness of EAJA Award

Plaintiff initially requested attorney’s fees in the amount of $13,222.15 to
James P. O’Brien and $9,282.84 to John E. Seidlitz, Jr. (Doc. 32 at 4.) Plaintiff’s
request was based on 112.35 hours at the applicable statutory maximum rates of
$192.68 per hour for work performed in 2016, $196.79 per hour for work
performed in 2017, $201.60 per hour for work performed in 2018, and $205.25 per
hour for work performed after 2018. (Id.) Plaintiff’s counsel subsequently
stipulated to a reduced fee amount of $10,500.00 to James P. O’Brien and
$8.500.00 to John E. Seidlitz, Jr. (Id.)
Defendant argues the fee request is unreasonable, even with the reduction
proposed by Plaintiff’s counsel. 1 Defendant asserts the claimed attorney hours are
excessive. Defendant further argues any fee award should be reduced because
Plaintiff achieved only limited success. Defendant notes Plaintiff “only obtained
remand for further proceedings on a discrete issue.” (Doc. 34 at 9.)
The EAJA provides for an award of “reasonable” attorney fees. 28 U.S.C. §
Defendant also argues fees-for-fees should be denied. (Doc. 34 at 10-11.) It does
not appear, however, that Plaintiff is seeking fees-for fees, and Defendant has not
identified any fees-for-fees. Defendant’s motion in this regard is therefore, denied.
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2412(d)(2)(A). In the Ninth Circuit, courts apply the principles set forth in
Hensley v. Eckerhart, 461 U.S. 424 (1983) to determine what constitutes a
reasonable fee award under the EAJA. Costa v. Comm’r of Soc. Sec. Admin., 690
F.3d 1132, 1135 (9th Cir. 2012). The prevailing party bears the burden to prove
the fee amount requested is reasonable, and must submit documentation in support
of the fee request. Hensley, 461 U.S. at 437; 28 U.S.C. § 2412(d)(1)(B).
Courts generally determine the amount of a reasonable fee by taking “the
number of hours reasonably expended on the litigation multiplied by a reasonable
hourly rate.” Hensley, 461 U.S. at 433. The Court may reduce a fee award if the
applicant has provided inadequate documentation of the fees requested, or claims
hours that are “excessive, redundant, or otherwise unnecessary.” Id. at 434. The
Court may also consider other factors to adjust the fee upwards or downwards,
“including the important factor of the results obtained.’” Id.
Where the prevailing party achieved only limited success, the court applies a
two part test to determine whether a fee award should be reduced. Hensley, 461
U.S. at 434. First, the Court considers whether “the plaintiff fail[ed] to prevail on
claims that were unrelated to the claims on which he succeeded.” Id. “Claims are
‘unrelated’ if they are ‘entirely distinct and separate’ from the claims on which the
plaintiff prevailed.” Sorenson v. Mink, 239 F.3d 1140, 1147 (9th Cir. 2001). Any
hours spent on unrelated, unsuccessful claims should be excluded from the fee
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award. Id. Second, the Court determines whether “the plaintiff achieve[d] a level
of success that makes the hours reasonably expended a satisfactory basis for
making a fee award.” Hensley, 461 U.S. at 434. In making this assessment, “a
district court ‘should focus on the significance of the overall relief obtained by the
plaintiff in relation to the hours reasonably expended on the litigation.’ [] ‘Where
a plaintiff has obtained excellent results, his attorney should recover a fully
compensatory fee.’ [] A plaintiff may obtain excellent results without receiving all
the relief requested.” Sorenson, 239 F.3d at 1147 quoting Hensley, 461 U.S. at 435
(internal citations omitted).
a.

Rates

The Court notes Defendant does not object to the claimed hourly rates. The
rates are consistent with the cap provided by statute. 2 The Court, therefore, finds
the hourly rates proposed by Plaintiff’s counsel are reasonable under the EAJA.
///
///

Pursuant to the EAJA, 28 U.S.C. § 2412 (d)(2)(A), Thangaraja v. Gonzales, 428
F.3d 870, 876-77 (9th Cir. 2005), and Ninth Circuit Rule 39-1.6, the statutory
maximum hourly rate, adjusted for increases in the cost of living for 2016 was
$192.68, for 2017 was $196.79, for 2018 was $201.60, and for 2019 was $205.25.
See United States Courts for the Ninth Circuit, Statutory Maximum Rates Under
the Equal Access to Justice Act,
https://www.ca9.uscourts.gov/content/view.php?pk_id=0000000039.

2

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b.

Hours Expended

“Social security cases are fact-intensive and require a careful application of
the law to the testimony and documentary evidence, which must be reviewed and
discussed in considerable detail.” Patterson v. Apfel, 99 F.Supp.2d 1212, 1213
(C.D. Cal. 2000.) Here, the Administrative Record was in excess of 800 pages,
Plaintiff filed a 37-page brief, Defendant a 24-page response, and Plaintiff an 18page reply, in addition to the briefing filed before the Ninth Circuit. Plaintiff
raised four legal issues before this Court, comprised of subparts, and each factually
unique. Although the issues raised are common legal issues in social security
cases, the analysis and resolution of the multiple subparts was fact intensive, as
reflected in the Court’s relatively lengthy Order of 38 pages. (Doc. 20.) The Court
therefore finds the number of hours requested by counsel in reviewing the file and
drafting and completing briefing before this Court and the Ninth Circuit is not
unreasonable.
A survey of several cases in which attorney fees were awarded in social
security cases in this district also suggests the award requested by Plaintiff’s
counsel here is not excessive. See Doc. 35 at 8-9 (collecting cases). Moreover,
counsel’s voluntary reduction in their fee request of approximately 20% for Mr.
O’Brien and 9% for Mr. Seidlitz, is sufficient to address any excessive, redundant
or unnecessary hours. Hensley, 461 U.S. at 434.
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c.

Extent of Plaintiff’s Success

Here, all of the arguments Plaintiff asserted in this litigation related to a
single claim for relief – his claim for disability benefits. Trefcer v. Colvin, 2013
WL 6623823, *5 (E.D. Cal. Dec. 16, 2013) (“Social Security appeals are akin to a
single claim for relief based on one set of facts and involving related legal
theories.”). Plaintiff prevailed on that claim when the Ninth Circuit reversed the
ALJ’s decision and remanded for further proceedings.
The fact the Ninth Circuit was persuaded by only one of Plaintiff’s
arguments does not support a reduction in the attorney fee award. Generally, fee
awards should not be reduced “simply because the plaintiff failed to prevail on
every contention raised in the lawsuit.” Hensley, 461 U.S. at 435.
Nor does the Court find the fact the Ninth Circuit remanded for further
proceedings, as opposed to an awarding benefits, justify reducing the fee award.
Plaintiff was successful in getting his case remanded to the ALJ to determine
whether he is disabled. He therefore obtained overall success in this litigation. See
e.g. Stevenson v. Astrue, 2012 WL 5412704, *7 (N.D. Cal. Nov. 6, 2012)
(declining to reduce a fee award in a social security case even though the court
only remanded the action for further proceedings based upon only one of the
arguments asserted by the plaintiff); Williams v. Astrue, 2012 WL 3527224, *4 (D.
Or. June 26, 2012), report and recommendation adopted by, 2012 WL 3527207 (D.
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Or. Aug. 15, 2012) (refusing to reduce fee award, and stating that where the
plaintiff obtained reversal of the Commissioner’s decision and a remand for further
proceedings “she achieved the relief she sought, thereby obtaining an excellent
result.”); Harman v. Apfel, 211 F.3d 1172, 1177 (9th Cir. 2000) (noting that the
“consequences of a remand for further proceedings are somewhat less substantial
than those flowing from an outright denial of benefits” but further stating “the
ultimate consequence of a remand for further proceedings could well be an award
of benefits”) (emphasis added).
C.

Costs

As the prevailing party, Plaintiff may recover costs under the EAJA. 28
U.S.C. § 2412(a). The recoverable costs are enumerated in 28 U.S.C. § 1920, and
include “Fees of the clerk and marshal.” 28 U.S.C. § 1920(1). Here, Plaintiff
requests $905.00 in “fees of the clerk,” which consists of the Civil Filing Fee
($400.00) and Notice of Appeal Fee ($505.00).
Defendant argues Plaintiff is seeking costs from the wrong court, without a
bill of costs, and his request is untimely under Federal Rule of Appellate Procedure
39(d)(1). Defendant is incorrect.
Federal Rule of Appellate Procedure 39(d) refers to costs on appeal that are
included on the mandate, and must be filed within 14 days after entry of judgment.
Fed.R.App.P. 39(d). Whereas, Rule 39(e) governs the costs of the appeal that are
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taxable in the district court, and does not include a time limitation. Fed.R.App.P.
39(e). The costs listed under Rule 39(e) are taxed by the district court because
they are incurred at the district level. See Sudouest Imp. Sales Corp. v. Union
Carbide Corp., 102 F.R.D. 264, 264 (D. P.R. 1984) (explaining difference between
costs under Rule 39(d) and 39(e)). The filing fee for the Notice of Appeal is
specifically listed under Rule 39(e). Fed.R.App.P. 39(e)(4). Accordingly, Plaintiff
properly seeks to recover his costs for “fees of the clerk” in this Court. Sudouest,
102 F.R.D. at 264 (“[T]o secure the costs mentioned in Rule 39(e), the prevailing
party must make a separate application to the district court after the mandate has
been received from the court of appeals.”) (emphasis in original).
Civil Local Rule 54.1(a) provides:
Within 14 days after the entry of a judgment allowing costs, the
prevailing party may serve and file an application for the taxation of
costs. The application must be made on Form AO-133, Bill of Costs,
available on the court’s website.
L.R. 54.1(a)(1).
Here, Plaintiff did not file a bill of costs within 14 days of the judgment, or
submit a bill of costs on Form AO-133. The defect, however, is not fatal to
Plaintiff’s request for costs. Local Rule 54.1 further specifies that “Failure to
comply with any provision of this subsection (a) will be deemed a waiver of all
costs except clerk costs.” L.R. 54.1(a)(1) (emphasis added). Local Rule 54.1
further provides that “Clerk’s costs may be inserted in the judgment without
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application.” L.R. 54.1(a)(5). The Local Rules, therefore, contemplate that clerk
costs do not necessarily require a bill of costs to be submitted within 14 days of the
judgment.
Here, the only cost Plaintiff is seeking to recover is filing fees, i.e. “clerk
costs.” It appears from a review of the docket that Plaintiff paid $400.00 in clerk’s
costs when he filed the Complaint (receipt number MT400010780) and $505.00
when he filed the Notice of Appeal (Doc. 22; Receipt Number MTX400012573).
Accordingly, the Court finds Plaintiff is entitled to recover costs in the
amount of $905.00.
III.

CONCLUSION
For the foregoing reasons, the Court finds Defendant has failed to meet its

burden of showing the government’s position was substantially justified under the
EAJA. Plaintiff is the prevailing party and is an individual whose net worth does
not exceed $2,000,000.00. 28 U.S.C. § 2412(d)(2)(B).
Accordingly, IT IS HEREBY ORDERED that Plaintiff’s Application for
Award of EAJA Fees and Costs (Doc. 32) is GRANTED.
Defendant must promptly pay Plaintiff’s counsel fees in the amount of
$10,500.00 to James P. O’Brien and $8.500.00 to John E. Seidlitz, Jr., as well as
costs of $905.00.

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This award is subject to offset to satisfy any preexisting debt that Plaintiff
owes the United States pursuant to Astrue v. Ratliff, 560 U.S. 586 (2010) and the
Treasury Offset Program, 31 U.S.C. § 3716. If the government determines
Plaintiff does not owe a federal debt, then the government shall cause the payment
of the award to be made directly to Plaintiff’s counsel.
IT IS ORDERED.
DATED this 12th day of April, 2020.
_______________________________
TIMOTHY J. CAVAN
United States Magistrate Judge

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