Verdiyan v. Colvin

Filing 29

ORDER granting plaintiff's 21 Motion for Attorney Fees; Plaintiff is ORDERED to submit detailed documentation of the hours worked to prepare the reply brief for this motion within two weeks. Once those are submitted, the Court will award the full attorney fees amount requested by U.S. District Judge John C Coughenour.(RS)

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THE HONORABLE JOHN C. COUGHENOUR 1 2 3 4 5 6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 8 9 GEORGIY VERDIYAN, 10 Plaintiff, v. 11 CASE NO. C15-1680-JCC ORDER GRANTING PLAINTIFF’S MOTION FOR EAJA FEES NANCY A. BERRYHILL, Acting Commissioner of Social Security 12 13 Defendant. 14 15 This matter comes before the Court on Plaintiff Georgiy Verdiyan’s motion for Equal 16 17 18 19 20 21 22 23 24 25 Access to Justice Act attorney fees pursuant to 28 U.S.C. § 2412 (Dkt. No. 21). Having considered the parties’ briefing and the relevant record, the Court finds oral argument unnecessary and hereby GRANTS Plaintiff’s motion for the reasons explained herein. I. BACKGROUND Plaintiff challenged the Social Security Commissioner’s finding of nondisability. (See generally Dkt. No. 3.) The Commissioner opposed the motion, and this Court reversed and remanded the Commissioner’s final decision for further proceedings. (See Dkt. Nos. 15, 18.) The instant motion followed to seek attorney fees pursuant to the Equal Access to Justice Act (EAJA). (Dkt. No. 21.) 26 ORDER GRANTING PLAINTIFF’S MOTION FOR EAJA FEES PAGE - 1 1 Plaintiff asks this Court to authorize attorney fees in the amount of $8,390.17. (Dkt. No. 2 28 at 6.) Plaintiff states that 30.4 hours of attorney billable hours were expended between Eitan 3 Yanich and Noah Yanich 1—16.2 hours and 14.2 hours, respectively. (Dkt. No. 21-3.) The 4 Commissioner concedes Plaintiff’s request for attorney fees is appropriate, but argues the 5 amount requested is not reasonable. (Dkt. No. 24 at 2–3.) 6 II. 7 DISCUSSION Because there is no disagreement as to whether Plaintiff is entitled to reasonable attorney 8 fees, the Court must determine the proper amount of attorney fees. “[T]he amount of the fee, of 9 course, must be determined on the facts of each case” starting at the number of hours expended 10 on litigation. Hensley v. Eckerhart, 461 U.S. 424, 429–33 (1983). Although there is no explicit 11 hour range established by the Ninth Circuit as reasonable, the Sixth Circuit has held that 12 expending 30–40 hours on a Social Security case is reasonable. Hayes v. Sec’y of Health and 13 Human Servs., 923 F.2d 418, 420 (6th Cir. 1990); see also Pete v. Colvin, Case No. C15-5391- 14 RSM, Dkt. No. 23 at 1, Dkt. No. 24 at 8 (W.D. Wash. 2009) (finding expending 41.0 hours on a 15 similar Social Security case was reasonable). If the Government disputes the reasonableness of 16 the fee, it “has the burden of rebuttal that requires submission of evidence to the district court 17 challenging the accuracy and reasonableness of the hours charged or the facts asserted by the 18 prevailing party in its submitted affidavits.” Gates v. Deukmejian, 987 F.2d 1392, 1397–98 (9th 19 Cir. 1992). 20 Here, the Commissioner suggests the case was overstaffed, and therefore the hours 21 requested are unreasonable. (Dkt. No. 24 at 4.) However, the 30.4 hours expended between Eitan 22 and Noah are consistent with other reasonable attorney fees requests. See Hayes, 923 F.2d at 23 420; Pete v. Colvin, Case No. C15-5391-RSM, Dkt. No. 24 at 8. The Commissioner does not 24 provide a compelling argument or offer any support that utilizing the services of multiple 25 attorneys justifies a finding that the case is overstaffed or the hours expended are unreasonable. 26 1 The Court will refer to Plaintiff’s counsel by their first names for clarity and means no disrespect. ORDER GRANTING PLAINTIFF’S MOTION FOR EAJA FEES PAGE - 2 1 The Commissioner also argues Noah’s hours are unreasonable because Noah is not 2 admitted to practice in Washington State or the Western District of Washington, has not shown 3 that he would be eligible for admission to this Court pro hac vice, and only performed a limited 4 role. (Dkt. No. 24 at 2–3.) As such, the Commissioner maintains Noah should not be 5 compensated at the prevailing hourly attorney rate ($192.68), but rather at an hourly paralegal 6 rate ($100). (Id. at 7.) The Court agrees with the Commissioner that the Ninth Circuit has 7 recognized that different types of work are billed at different rates. (Dkt. No. 24 at 4) (citing 8 Nadarajah v. Holder, 569 F.3d 906, 918 (9th Cir. 2009); In re Hunt, 238 F.3d 1098, 1105 (9th 9 Cir. 2001)). However, the Court disagrees that Noah should be precluded from an attorney 10 11 hourly rate. Both parties cite to Winterrowd v. American General Annuity Insurance Company, 556 12 F.3d 815 (9th Cir. 2009), which the Court finds instructive. In Winterrowd, the Ninth Circuit 13 reversed the Central District of California’s denial of attorney fees. The Ninth Circuit found 14 attorney fees to be reasonable where the attorney “(a) [was] not a member of the California state 15 bar, (b) [did] not physically appear in the Central District, (c) [did] not sign pleadings in a case 16 before the Central District, (d) [had] minimal contact with clients and no direct contact with 17 opposing counsel in the case, (e) [was] supervised by [a member of the California state bar], and 18 (f) [was] not admitted pro hac vice in the case, but no evidence in the record show[ed] that he 19 would not have routinely been so admitted had he applied.” Winterrowd, 556 F.3d at 817. 20 The facts in this case are nearly identical to Winterrowd. Noah is a qualified attorney who 21 graduated cum laude from the University of Michigan Law School and is admitted to many 22 federal and state courts. (Dkt. No. 28 at 3.) Under Western District of Washington Local Rule 23 83.1, Noah would be eligible for routine admission pro hac vice. Moreover, it is also worth 24 noting that Noah has been awarded fees at an attorney hourly rate in over 100 EAJA attorney 25 fees cases. (Dkt. No. 28 at 2.) His requested hourly rate, $192.68, is the Ninth Circuit’s statutory 26 maximum for attorneys. Ninth Circuit Rule 39-1.6; Thangaraja v. Gonzales, 428 F.3d 870, 876 ORDER GRANTING PLAINTIFF’S MOTION FOR EAJA FEES PAGE - 3 1 (9th Cir. 2005). Thus, the Commissioner’s arguments against awarding Noah an attorney hourly 2 rate do not persuade the Court that the amount Plaintiff requests is unreasonable. The motion for 3 attorney fees is GRANTED. 4 III. 5 CONCLUSION For the foregoing reasons, the motion for attorney fees (Dkt. No. 21) is GRANTED. 6 Included in this attorney fees award, Plaintiff also requests the additional fees incurred while 7 preparing the reply brief for this motion. See Cmm’r, I.N.S. v. Jean, 496 U.S. 154, 163–66 (1990) 8 (holding that attorney fees should be awarded for additional time reasonably spent defending the 9 application for EAJA attorney fees). But, it is unclear from the briefing if the attorneys expended 10 9.7 hours or 10.2 hours on the reply brief. (See Dkt. No. 28 at 7.) Additionally, no documentation 11 was submitted detailing the hours worked on the reply brief. Therefore, Plaintiff is ORDERED to 12 submit detailed documentation of the hours worked to prepare the reply brief for this motion 13 within two weeks. Once those are submitted, the Court will award the full attorney fees amount 14 requested. 15 DATED this 18th day of April 2017. A 16 17 18 John C. Coughenour UNITED STATES DISTRICT JUDGE 19 20 21 22 23 24 25 26 ORDER GRANTING PLAINTIFF’S MOTION FOR EAJA FEES PAGE - 4

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