Thompson v. Berryhill
ORDER GRANTING 20 Motion for EAJA Fees and Costs signed by Hon. Brian A Tsuchida.(AE)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
CASE NO. C17-305 BAT
ORDER GRANTING EAJA
FEES AND COSTS
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Vincent Thompson, moves for EAJA fees of $7,779. Dkt. 20. The Commissioner argues
that her position is substantially justified and no fees should be awarded. Dkt. 21. The Court
rejects the Commissioner’s argument and GRANTS plaintiff’s motion. Plaintiff is also entitled
to fees for the time spent writing and filing a reply and may submit for the Court’s signature a
proposed order for the additional amount.
Substantial justification requires the government to demonstrate its position had a
reasonable basis in both law and fact at each stage of the proceedings, including both the
government’s litigation position, and the underlying agency action giving rise to the civil action.
Tobeler v. Colvin, 749 F.3d 830, 832–34 (9th Cir. 2014). The “position of the United States”
includes both the government’s litigation position and the underlying agency action giving rise to
the civil action. Meier v. Colvin, 727 F.3d 867, 870 (9th Cir. 2014). Thus the Court first
ORDER GRANTING EAJA FEES 3
considers the underlying agency action to determine whether the government’s position is
substantially justified. Id. at 872. A court need not address whether the government’s subsequent
litigation position is justified when the underlying agency position was not substantially justified.
Id. at 872–73. Here the Commissioner reargues her position, a position the Court already rejected
in reversing the ALJ’s decision, and which the Court rejects as establishing substantial
justification. To the extent the Commissioner raises new arguments, they cannot be relied upon
to substantially justify a prior position.
Accordingly the Court GRANTS Mr. Thompson’s motion, Dkt. 20, and ORDERS that
plaintiff is awarded EAJA fees and expenses in the sum of $7,779. The Court has reviewed the
pleadings and finds the fee requested is reasonable. Subject to offsets allowed under the Treasury
Offset Program, under Astrue v. Ratliff, 560 U.S. 586 (2010), payment of the award shall be sent
to plaintiff’s attorney Steve Hood at his address: Steve Hood, Attorney at Law, P.S., 114 W.
Magnolia St., Ste. 400-157, Bellingham, WA 98225. Plaintiff is also entitled to fees for the time
spent writing and filing the reply brief on the motion for EAJA fees. Plaintiff may submit for the
Court’s signature a proposed order for this additional amount.
DATED this 6th day of December, 2017.
BRIAN A. TSUCHIDA
United States Magistrate Judge
ORDER GRANTING EAJA FEES 3
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