Miramontez v. Colvin

Filing 29

ORDER GRANTING 25 MOTION FOR ATTORNEYS FEES UNDER THE EQUAL ACCESS TO JUSTICE ACT, 28 U.S.C. § 2412(d) signed by Hon. Brian A Tsuchida.(AE)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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DEBORAH MIRAMONTEZ,
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Plaintiff,
v.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,

CASE NO. C16-1878-BAT
ORDER GRANTING MOTION FOR
ATTORNEY’S FEES UNDER THE
EQUAL ACCESS TO JUSTICE ACT, 28
U.S.C. § 2412(d)

Defendant.

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Deborah Miramontez, the prevailing party in this Social Security disability appeal, moves

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under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d), for an award of attorney’s

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fees of $5,185.79, as well as expenses of $17.25. Dkt. 25. The Commissioner opposes the

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motion, arguing that no fees should be awarded because her position was substantially justified.

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Dkt. 27. The Court rejects the Commissioner’s arguments and GRANTS plaintiff’s motion.

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The EAJA authorizes payment of attorney’s fees to a prevailing party in an action against

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the United States, unless the court finds that the government’s position on the merits in the

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litigation was “substantially justified.” 28 U.S.C. § 2412(d)(1)(A). To show that its position was

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“substantially justified” the government must demonstrate that its position had a reasonable basis

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in both law and fact at each stage of the proceedings, including both the government’s litigation

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ORDER GRANTING MOTION FOR ATTORNEY’S FEES UNDER THE
EQUAL ACCESS TO JUSTICE ACT, 28 U.S.C. § 2412(D) - 1

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position and the underlying agency action giving rise to the civil action. Tobeler v. Colvin, 749

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F.3d 830, 832–34 (9th Cir. 2014).

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Deviating from this standard, the Commissioner argues that the issue is “whether the

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Commissioner was substantially justified despite the deficiencies in the ALJ’s decision.” Dkt. 27

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at 2. However, the “position of the United States” includes both the government’s litigation

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position and the underlying agency action giving rise to the civil action. Meier v. Colvin, 727

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F.3d 867, 870 (9th Cir. 2014). Thus in assessing whether the government’s position is

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substantially justified, a Court first considers the underlying agency action. Id. at 872. A court

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need not address whether the government’s subsequent litigation position is justified when the

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underlying agency position was not substantially justified. Id. at 872–73.
The Commissioner reasserts arguments that the Court has already rejected in reversing

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the ALJ’s decision, and which the Court now rejects as establishing substantial justification. To

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the extent the Commissioner raises new arguments, they cannot be relied upon to substantially

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justify a prior position. Accordingly, the Court GRANTS Ms. Miramontez’s motion (Dkt. 25).

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The Commissioner did not object to the amount of fees Ms. Miramontez requested. The

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Court has reviewed Ms. Miramontez’s motion and supporting declarations and the record, and

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finds the amount requested is reasonable. The Court therefore ORDERS:

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Plaintiff is awarded attorney’s fees of $5,185.79 and expenses of $17.25, for a total award

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of $5,203.04. If the U.S. Department of the Treasury determines that Plaintiff’s EAJA fees,

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expenses, and costs are not subject to offset allowed under the Department of the Treasury’s

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Offset Program (TOPS), then the check for EAJA fees, expenses, and costs shall be made

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ORDER GRANTING MOTION FOR ATTORNEY’S FEES UNDER THE
EQUAL ACCESS TO JUSTICE ACT, 28 U.S.C. § 2412(D) - 2

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payable to Plaintiff’s attorney, Howard D. Olinsky, 300 South State Street, Suite 420, Syracuse,

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NY 13202.

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DATED this 31st day of October, 2017.

A

BRIAN A. TSUCHIDA
United States Magistrate Judge

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ORDER GRANTING MOTION FOR ATTORNEY’S FEES UNDER THE
EQUAL ACCESS TO JUSTICE ACT, 28 U.S.C. § 2412(D) - 3