Carter v. Colvin
MINUTE ORDER granting Plaintiff's 39 Supplemental Motion for Attorney's Fees. It is hereby ORDERED that attorney'sfees in the amount of $11,790.95, and expenses in the amount of $397.00, for a total of $12,187.95, shall be awarded to plaintiff. Authorized by Judge Thomas S. Zilly. (SWT)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
NANCY A. BERRYHILL, Acting
Commissioner of the Social Security
The following Minute Order is made by direction of the Court, the Honorable
Thomas S. Zilly, United States District Judge:
Plaintiff’s supplemental motion for attorney’s fees, docket no. 39, is
GRANTED. Plaintiff seeks $6,367.01 in fees under the Equal Access to Justice Act, 28
U.S.C. § 2412(d), for his merits appeal to this court, and an additional $5,423.941 in fees
incurred in obtaining reversal of this Court’s denial of plaintiff’s motion for attorney’s
fees and preparing the supplemental briefing requested by the Court. The Commissioner
argues for a 90% reduction in plaintiff’s requested fee for the merits appeal based on
plaintiff’s limited success.2 However, the Court is unconvinced that the success plaintiff
achieved in this case is sufficiently limited to warrant any reduction of plaintiff’s EAJA
fee. Although plaintiff did not obtain a remand for an immediate award of benefits, this
Plaintiff’s motion indicates that plaintiff requests $6,604.34 for the merits appeal in this
Court, and $5,191.61 in fees incurred in the Ninth Circuit and in preparing a response as ordered
by this Court. However, the time sheet submitted in connection with plaintiff’s most recent
request for fees, see docket no. 39-1, reflects that the fee amounts are actually $6,367.01 and
20 $5,423.94 respectively.
Although the Court allowed the Commissioner time to respond to plaintiff’s request for
his fees on appeal, Minute Order, docket no. 40, the Commissioner failed to do so. The Court
construes this failure as an admission that plaintiff’s request for an additional $5,423.94 in
attorney’s fees has merit. See Local Civil Rule 7(b)(2). In any case, plaintiff prevailed on appeal
and the Court is satisfied that these fees are reasonable in light of the success plaintiff achieved.
MINUTE ORDER - 1
1 Court required the ALJ to “reevaluate the opinions of Dr. Hopfeneck and Dr. Czysz,
develop the record as needed, and reassess Mr. Carter’s RFC and proceed to steps four
2 and five as necessary.” See Report and Recommendations, docket no. 27 at 10. The
Commissioner’s contention that plaintiff is “highly unlikely to ever prevail in his claim
3 for benefits” is entirely speculative and provides no reasonable basis for reducing
plaintiff’s fee award. Plaintiff was the prevailing party in a “proceeding for judicial
4 review of agency action,” see 28 U.S.C. § 2412(d)(1)(A), and the 33.5 hours expended at
the district court level is well within the average range for Social Security appeals, see,
5 e.g., Patterson v. Apfel, 99 F. Supp. 2d 1212, 1214 n. 2 (C.D. Cal. 2000) (collecting
Accordingly, it is hereby ORDERED that attorney’s fees in the amount of
7 $11,790.95, and expenses in the amount of $397.00, for a total of $12,187.95, shall be
awarded to plaintiff. If it is determined that plaintiff’s EAJA fees are not subject to any
8 offset allowed under the Department of the Treasury’s Offset Program, see Astrue v.
Ratliff, 130 S. Ct. 221 (2010), then the check for EAJA fees shall be made payable to
9 Christopher H. Dellert, based upon plaintiff’s assignment of this fee to his attorney. Any
check for EAJA fees shall be mailed to plaintiff’s counsel, Christopher H. Dellert, at
10 Dellert Baird Law Offices, PLLC, P.O. Box 97301, Lakewood, WA, 98497.
The Clerk is directed to send a copy of this Minute Order to all counsel of
Dated this 11th day of May, 2017.
William M. McCool
MINUTE ORDER - 2
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