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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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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VINCENT THOMPSON,
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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

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that her position is substantially justified and no fees should be awarded. Dkt. 21. The Court

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rejects the Commissioner’s argument and GRANTS plaintiff’s motion. Plaintiff is also entitled

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to fees for the time spent writing and filing a reply and may submit for the Court’s signature a

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proposed order for the additional amount.

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Substantial justification requires the government to demonstrate its position had a

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reasonable basis in both law and fact at each stage of the proceedings, including both the

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government’s litigation position, and the underlying agency action giving rise to the civil action.

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Tobeler v. Colvin, 749 F.3d 830, 832–34 (9th Cir. 2014). The “position of the United States”

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includes both the government’s litigation position and the underlying agency action giving rise to

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the civil action. Meier v. Colvin, 727 F.3d 867, 870 (9th Cir. 2014). Thus the Court first

ORDER GRANTING EAJA FEES 3

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considers the underlying agency action to determine whether the government’s position is

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substantially justified. Id. at 872. A court need not address whether the government’s subsequent

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litigation position is justified when the underlying agency position was not substantially justified.

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Id. at 872–73. Here the Commissioner reargues her position, a position the Court already rejected

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in reversing the ALJ’s decision, and which the Court rejects as establishing substantial

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justification. To the extent the Commissioner raises new arguments, they cannot be relied upon

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to substantially justify a prior position.

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Accordingly the Court GRANTS Mr. Thompson’s motion, Dkt. 20, and ORDERS that

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plaintiff is awarded EAJA fees and expenses in the sum of $7,779. The Court has reviewed the

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pleadings and finds the fee requested is reasonable. Subject to offsets allowed under the Treasury

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Offset Program, under Astrue v. Ratliff, 560 U.S. 586 (2010), payment of the award shall be sent

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to plaintiff’s attorney Steve Hood at his address: Steve Hood, Attorney at Law, P.S., 114 W.

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Magnolia St., Ste. 400-157, Bellingham, WA 98225. Plaintiff is also entitled to fees for the time

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spent writing and filing the reply brief on the motion for EAJA fees. Plaintiff may submit for the

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Court’s signature a proposed order for this additional amount.

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DATED this 6th day of December, 2017.

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A

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BRIAN A. TSUCHIDA
United States Magistrate Judge

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ORDER GRANTING EAJA FEES 3