Jones v. Commissioner Social Security Administration

Filing 18

ORDER - Plaintiff's application for attorney's fees (ECF 16 ) is GRANTED IN PART. Plaintiff is awarded $5,577.15 for attorney's fees under 28 U.S.C. § 2412. EAJA fees, expenses, and costs are subject to any offsets a llowed under the Treasury Offset Program, as discussed in Ratliff, 560 U.S. at 593-94. Because Plaintiff has filed with the Court an assignment of EAJA fees to counsel (ECF 16-2), if Plaintiff has no debt subject to the Treasury Offset Program, then Defendant shall cause the check to be made payable to Plaintiff's attorney Tim Wilburn and mailed to Plaintiff's attorney. If Plaintiff owes a debt subject to the Treasury Offset Program, then the check for any remaining funds after offset of the debt shall be payable to Plaintiff and mailed to Plaintiff's attorney. Signed on 2/7/2018 by Judge Michael H. Simon. (mja)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

JOEL C. JONES, JR.,
Plaintiff,

Case No. 6:17-cv-0153-SI
ORDER

v.
NANCY A. BERRYHILL,
Commissioner of Social Security,
Defendant.
Michael H. Simon, District Judge.
On November 8, 2017, the Court reversed the Commissioner’s determination that
Plaintiff was not disabled and remanded the matter back to the agency for further proceedings,
based on the stipulation of the parties. ECF 15. Before the Court is Plaintiff’s unopposed
application for attorney’s fees pursuant to the Equal Access to Justice Act (“EAJA”), 28 U.S.C.
§ 2412. ECF 16.
EAJA authorizes the payment of attorney’s fees to a prevailing party in an action against
the United States, unless the government shows that its position in the underlying litigation “was
substantially justified.” 28 U.S.C. § 2412(d)(1)(A). Although EAJA creates a presumption that
fees will be awarded to a prevailing party, Congress did not intend fee shifting to be mandatory.

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Flores v. Shalala, 49 F.3d 562, 567 (9th Cir. 1995). The decision to deny EAJA attorney’s fees is
within the discretion of the court. Id.; Lewis v. Barnhart, 281 F.3d 1081, 1083 (9th Cir. 2002). A
social security claimant is the “prevailing party” following a sentence-four remand pursuant
to 42 U.S.C. § 405(g) either for further administrative proceedings or for the payment of
benefits. Flores, 49 F.3d at 567-68 (citing Shalala v. Schaefer, 509 U.S. 292, 300 (1993)). Fee
awards under EAJA are paid to the litigant, and not the litigant’s attorney, unless the litigant has
assigned his or her rights to counsel to receive the fee award. Astrue v. Ratliff, 560 U.S. 586,
596-98 (2010).
Plaintiff seeks an award of attorney’s fees in the amount of $6,196.83. Defendant does
not oppose Plaintiff’s motion. Under EAJA, however, fees must be “reasonable.” 28 U.S.C.
§ 2412(d)(2)(A). “The Court has an independent duty to review the submitted itemized log of
hours to determine the reasonableness of hours requested in each case.” Schwitzke v.
Berryhill, 2017 WL 6558257, at *1 (W.D. Wash. Dec. 22, 2017) (citing Hensley v.
Eckerhart, 461 U.S. 424, 433, 436-37 (1983)).
The Court agrees that EAJA fees are warranted in this case, but finds that the hours
submitted are not reasonable. For example, counsel for Plaintiff lists one hour to “begin”
preparing the less-than two page unopposed EAJA fee motion. Counsel also lists 0.2 hours to
review proof of service documents received and 0.3 hours to “prepare” documents to “allege
service in ECF,” when that ECF filing merely consists of photocopies of the service documents
received by counsel, without anything additional “prepared” by counsel. See ECF 6. Counsel
also expended more than 22 hours to draft a 20-page opening brief.
When a district court has concerns regarding the time charged in a fee petition, “‘the
district court can impose a small reduction, no greater than 10 percent—a ‘haircut’—based on its

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exercise of discretion and without a more specific explanation.’” Gonzalez v. City of
Maywood, 729 F.3d 1196, 1203 (9th Cir. 2013) (alteration omitted) (quoting Moreno v. City of
Sacramento, 534 F.3d 1106, 1112 (9th Cir. 2008)). Accordingly, the Court reduces the fee
request by 10 percent.
Plaintiff’s application for attorney’s fees (ECF 16) is GRANTED IN PART. Plaintiff is
awarded $5,577.15 for attorney’s fees under 28 U.S.C. § 2412. EAJA fees, expenses, and costs
are subject to any offsets allowed under the Treasury Offset Program, as discussed in Ratliff, 560
U.S. at 593-94. Because Plaintiff has filed with the Court an assignment of EAJA fees to counsel
(ECF 16-2), if Plaintiff has no debt subject to the Treasury Offset Program, then Defendant shall
cause the check to be made payable to Plaintiff’s attorney Tim Wilburn and mailed to Plaintiff’s
attorney. If Plaintiff owes a debt subject to the Treasury Offset Program, then the check for any
remaining funds after offset of the debt shall be payable to Plaintiff and mailed to Plaintiff’s
attorney.
IT IS SO ORDERED.
DATED this 7th day of February, 2018.

/s/ Michael H. Simon
Michael H. Simon
United States District Judge

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