Carter v. Colvin

Filing 41

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)

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1 2 3 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 4 5 LEONARD CARTER, 6 7 8 9 Plaintiff, v. C14-158 TSZ NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, 10 MINUTE ORDER Defendant. 11 The following Minute Order is made by direction of the Court, the Honorable Thomas S. Zilly, United States District Judge: 12 (1) 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 14 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 15 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 16 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 17 13 18 1 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 19 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. 2 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 22 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. 21 23 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 cases). 6 (2) 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. 11 12 (3) record. The Clerk is directed to send a copy of this Minute Order to all counsel of Dated this 11th day of May, 2017. 13 William M. McCool Clerk 14 15 s/Karen Dews Deputy Clerk 16 17 18 19 20 21 22 23 MINUTE ORDER - 2

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