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)

THE HONORABLE JOHN C. COUGHENOUR

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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GEORGIY VERDIYAN,

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Plaintiff,
v.

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CASE NO. C15-1680-JCC
ORDER GRANTING PLAINTIFF’S
MOTION FOR EAJA FEES

NANCY A. BERRYHILL, Acting
Commissioner of Social Security

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Defendant.

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This matter comes before the Court on Plaintiff Georgiy Verdiyan’s motion for Equal

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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.)

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ORDER GRANTING PLAINTIFF’S MOTION FOR
EAJA FEES
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Plaintiff asks this Court to authorize attorney fees in the amount of $8,390.17. (Dkt. No.

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28 at 6.) Plaintiff states that 30.4 hours of attorney billable hours were expended between Eitan

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Yanich and Noah Yanich 1—16.2 hours and 14.2 hours, respectively. (Dkt. No. 21-3.) The

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Commissioner concedes Plaintiff’s request for attorney fees is appropriate, but argues the

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amount requested is not reasonable. (Dkt. No. 24 at 2–3.)

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II.

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DISCUSSION
Because there is no disagreement as to whether Plaintiff is entitled to reasonable attorney

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fees, the Court must determine the proper amount of attorney fees. “[T]he amount of the fee, of

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course, must be determined on the facts of each case” starting at the number of hours expended

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on litigation. Hensley v. Eckerhart, 461 U.S. 424, 429–33 (1983). Although there is no explicit

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hour range established by the Ninth Circuit as reasonable, the Sixth Circuit has held that

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expending 30–40 hours on a Social Security case is reasonable. Hayes v. Sec’y of Health and

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Human Servs., 923 F.2d 418, 420 (6th Cir. 1990); see also Pete v. Colvin, Case No. C15-5391-

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RSM, Dkt. No. 23 at 1, Dkt. No. 24 at 8 (W.D. Wash. 2009) (finding expending 41.0 hours on a

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similar Social Security case was reasonable). If the Government disputes the reasonableness of

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the fee, it “has the burden of rebuttal that requires submission of evidence to the district court

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challenging the accuracy and reasonableness of the hours charged or the facts asserted by the

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prevailing party in its submitted affidavits.” Gates v. Deukmejian, 987 F.2d 1392, 1397–98 (9th

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Cir. 1992).

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Here, the Commissioner suggests the case was overstaffed, and therefore the hours

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requested are unreasonable. (Dkt. No. 24 at 4.) However, the 30.4 hours expended between Eitan

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and Noah are consistent with other reasonable attorney fees requests. See Hayes, 923 F.2d at

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420; Pete v. Colvin, Case No. C15-5391-RSM, Dkt. No. 24 at 8. The Commissioner does not

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provide a compelling argument or offer any support that utilizing the services of multiple

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attorneys justifies a finding that the case is overstaffed or the hours expended are unreasonable.

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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
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The Commissioner also argues Noah’s hours are unreasonable because Noah is not

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admitted to practice in Washington State or the Western District of Washington, has not shown

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that he would be eligible for admission to this Court pro hac vice, and only performed a limited

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role. (Dkt. No. 24 at 2–3.) As such, the Commissioner maintains Noah should not be

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compensated at the prevailing hourly attorney rate ($192.68), but rather at an hourly paralegal

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rate ($100). (Id. at 7.) The Court agrees with the Commissioner that the Ninth Circuit has

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recognized that different types of work are billed at different rates. (Dkt. No. 24 at 4) (citing

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Nadarajah v. Holder, 569 F.3d 906, 918 (9th Cir. 2009); In re Hunt, 238 F.3d 1098, 1105 (9th

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Cir. 2001)). However, the Court disagrees that Noah should be precluded from an attorney

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hourly rate.
Both parties cite to Winterrowd v. American General Annuity Insurance Company, 556

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F.3d 815 (9th Cir. 2009), which the Court finds instructive. In Winterrowd, the Ninth Circuit

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reversed the Central District of California’s denial of attorney fees. The Ninth Circuit found

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attorney fees to be reasonable where the attorney “(a) [was] not a member of the California state

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bar, (b) [did] not physically appear in the Central District, (c) [did] not sign pleadings in a case

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before the Central District, (d) [had] minimal contact with clients and no direct contact with

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opposing counsel in the case, (e) [was] supervised by [a member of the California state bar], and

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(f) [was] not admitted pro hac vice in the case, but no evidence in the record show[ed] that he

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would not have routinely been so admitted had he applied.” Winterrowd, 556 F.3d at 817.

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The facts in this case are nearly identical to Winterrowd. Noah is a qualified attorney who

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graduated cum laude from the University of Michigan Law School and is admitted to many

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federal and state courts. (Dkt. No. 28 at 3.) Under Western District of Washington Local Rule

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83.1, Noah would be eligible for routine admission pro hac vice. Moreover, it is also worth

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noting that Noah has been awarded fees at an attorney hourly rate in over 100 EAJA attorney

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fees cases. (Dkt. No. 28 at 2.) His requested hourly rate, $192.68, is the Ninth Circuit’s statutory

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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
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(9th Cir. 2005). Thus, the Commissioner’s arguments against awarding Noah an attorney hourly

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rate do not persuade the Court that the amount Plaintiff requests is unreasonable. The motion for

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attorney fees is GRANTED.

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III.

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CONCLUSION
For the foregoing reasons, the motion for attorney fees (Dkt. No. 21) is GRANTED.

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Included in this attorney fees award, Plaintiff also requests the additional fees incurred while

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preparing the reply brief for this motion. See Cmm’r, I.N.S. v. Jean, 496 U.S. 154, 163–66 (1990)

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(holding that attorney fees should be awarded for additional time reasonably spent defending the

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application for EAJA attorney fees). But, it is unclear from the briefing if the attorneys expended

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9.7 hours or 10.2 hours on the reply brief. (See Dkt. No. 28 at 7.) Additionally, no documentation

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was submitted detailing the hours worked on the reply brief. Therefore, Plaintiff is ORDERED to

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submit detailed documentation of the hours worked to prepare the reply brief for this motion

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within two weeks. Once those are submitted, the Court will award the full attorney fees amount

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requested.

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DATED this 18th day of April 2017.

A

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John C. Coughenour
UNITED STATES DISTRICT JUDGE

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ORDER GRANTING PLAINTIFF’S MOTION FOR
EAJA FEES
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