Thompson v. Berryhill

Filing 23

ORDER GRANTING 20 Motion for EAJA Fees and Costs signed by Hon. Brian A Tsuchida.(AE)

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1 2 3 4 5 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 6 7 VINCENT THOMPSON, 8 9 10 11 12 13 Plaintiff, CASE NO. C17-305 BAT ORDER GRANTING EAJA FEES AND COSTS v. NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant. Vincent Thompson, moves for EAJA fees of $7,779. Dkt. 20. The Commissioner argues 14 that her position is substantially justified and no fees should be awarded. Dkt. 21. The Court 15 rejects the Commissioner’s argument and GRANTS plaintiff’s motion. Plaintiff is also entitled 16 to fees for the time spent writing and filing a reply and may submit for the Court’s signature a 17 proposed order for the additional amount. 18 Substantial justification requires the government to demonstrate its position had a 19 reasonable basis in both law and fact at each stage of the proceedings, including both the 20 government’s litigation position, and the underlying agency action giving rise to the civil action. 21 Tobeler v. Colvin, 749 F.3d 830, 832–34 (9th Cir. 2014). The “position of the United States” 22 includes both the government’s litigation position and the underlying agency action giving rise to 23 the civil action. Meier v. Colvin, 727 F.3d 867, 870 (9th Cir. 2014). Thus the Court first ORDER GRANTING EAJA FEES 3 1 considers the underlying agency action to determine whether the government’s position is 2 substantially justified. Id. at 872. A court need not address whether the government’s subsequent 3 litigation position is justified when the underlying agency position was not substantially justified. 4 Id. at 872–73. Here the Commissioner reargues her position, a position the Court already rejected 5 in reversing the ALJ’s decision, and which the Court rejects as establishing substantial 6 justification. To the extent the Commissioner raises new arguments, they cannot be relied upon 7 to substantially justify a prior position. 8 Accordingly the Court GRANTS Mr. Thompson’s motion, Dkt. 20, and ORDERS that 9 plaintiff is awarded EAJA fees and expenses in the sum of $7,779. The Court has reviewed the 10 pleadings and finds the fee requested is reasonable. Subject to offsets allowed under the Treasury 11 Offset Program, under Astrue v. Ratliff, 560 U.S. 586 (2010), payment of the award shall be sent 12 to plaintiff’s attorney Steve Hood at his address: Steve Hood, Attorney at Law, P.S., 114 W. 13 Magnolia St., Ste. 400-157, Bellingham, WA 98225. Plaintiff is also entitled to fees for the time 14 spent writing and filing the reply brief on the motion for EAJA fees. Plaintiff may submit for the 15 Court’s signature a proposed order for this additional amount. 16 DATED this 6th day of December, 2017. 17 A 18 BRIAN A. TSUCHIDA United States Magistrate Judge 19 20 21 22 23 ORDER GRANTING EAJA FEES 3

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