Smith v. Berryhill

Filing 36

ORDER granting 33 Motion for EAJA Attorney Fees. Expenses and Costs signed by Judge J Richard Creatura.(SH)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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STEVEN M. SMITH,
Plaintiff,

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v.
NANCY A. BERRYHILL, Acting
Commissioner of the Social Security
Administration,

CASE NO. 3:13-cv-06082-JRC
ORDER ON PLAINTIFF’S
CONTESTED MOTION FOR
ATTORNEY’S FEES
PURSUANT TO THE EQUAL
ACCESS TO JUSTICE ACT

Defendant.

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This Court has jurisdiction pursuant to 28 U.S.C. § 636(c), Fed. R. Civ. P. 73 and

18 Local Magistrate Judge Rule MJR 13 (see also Notice of Initial Assignment to a U.S.
19 Magistrate Judge and Consent Form, Dkt. 6; Consent to Proceed Before a United States
20 Magistrate Judge, Dkt. 7). This matter comes before the Court on plaintiff’s contested
21 motion for attorney’s fees pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412
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(hereinafter “EAJA”) (see Dkt. 33; see also Dkts. 34, 35).

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ORDER ON PLAINTIFF’S CONTESTED MOTION
FOR ATTORNEY’S FEES PURSUANT TO THE
EQUAL ACCESS TO JUSTICE ACT - 1

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Subsequent to plaintiff’s success at obtaining a reversal of the decision of the

2 Social Security Administration, defendant Acting Commissioner challenged plaintiff’s
3 request for statutory attorney’s fees on the grounds that defendant’s position in this
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matter was justified in substance and had a reasonable basis in fact and law.

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Because this Court disagrees, and because the requested fees are reasonable,

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plaintiff’s motion for statutory fees should be granted. Dkt. 33.
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BACKGROUND and PROCEDURAL HISTORY
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On December 8, 2014, this Court issued an Order affirming the Social Security

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Administration’s decision to deny benefits (see Dkt. 23). Plaintiff appealed this decision

11 to the Ninth Circuit Court of Appeals on February 6, 2015 (Dkt. 25). On August 3, 2017,
12 the Court of Appeals issued a Memorandum which reversed and remanded this matter to
13 the Administration for further proceedings (Dkt. 28).
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The Ninth Circuit Court of Appeals found that the ALJ erred when reviewing the

15 medical evidence and when failing to credit fully medical opinions (see id., pp. 2, 6). This
16 matter was reversed pursuant to sentence four of 42 U.S.C. § 405(g) for further
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consideration due to the harmful errors (see id.).

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Subsequently, plaintiff filed a motion for EAJA attorney’s fees, to which

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defendant objected (see ECF Nos. 33, 34). Defendant asserts that her position was
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substantially justified and that no attorney fees should be awarded under the EAJA. Dkt.
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34, pp. 3-4). Plaintiff filed a reply (see ECF No. 35).
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ORDER ON PLAINTIFF’S CONTESTED MOTION
FOR ATTORNEY’S FEES PURSUANT TO THE
EQUAL ACCESS TO JUSTICE ACT - 2

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STANDARD OF REVIEW

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In any action brought by or against the United States, the EAJA requires that "a

3 court shall award to a prevailing party other than the United States fees and other
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expenses . . . . unless the court finds that the position of the United States was
substantially justified or that special circumstances make an award unjust." 28 U.S.C. §

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2412(d)(1)(A).
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According to the United States Supreme Court, “the fee applicant bears the burden
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of establishing entitlement to an award and documenting the appropriate hours
expended.” Hensley v. Eckerhart, 461 U.S. 424, 437 (1983). The government has the

11 burden of proving that its positions overall were substantially justified. Hardisty v.
12 Astrue, 592 F.3d 1072, 1076 n.2 (9th Cir. 2010), cert. denied, 179 L.Ed.2d 1215, 2011
13 U.S. LEXIS 3726 (U.S. 2011) (citing Flores v. Shalala, 49 F.3d 562, 569-70 (9th Cir.
14 1995)). Further, if the government disputes the reasonableness of the fee, then it also
15 “has a burden of rebuttal that requires submission of evidence to the district court
16 challenging the accuracy and reasonableness of the hours charged or the facts asserted by
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the prevailing party in its submitted affidavits." Gates v. Deukmejian, 987 F.2d 1392,
1397-98 (9th Cir. 1992) (citations omitted). The Court has an independent duty to review

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the submitted itemized log of hours to determine the reasonableness of hours requested in
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each case. See Hensley, supra, 461 U.S. at 433, 436-37.
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ORDER ON PLAINTIFF’S CONTESTED MOTION
FOR ATTORNEY’S FEES PURSUANT TO THE
EQUAL ACCESS TO JUSTICE ACT - 3

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DISCUSSION
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In this matter, plaintiff clearly was the prevailing party because he received a
remand of the matter to the administration for further consideration (see Order re:

5 Mandate, Dkt. 30). In order to award a prevailing plaintiff attorney fees, the EAJA also
6 requires a finding that the position of the United States was not substantially justified. 28
7 U.S.C. § 2412(d)(1)(B).
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The Court notes that the fact that the Administration did not prevail on the merits

9 does not compel the conclusion that its position was not substantially justified. See Kali v.
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Bowen, 854 F.2d 329, 334 (9th Cir. 1988)) (citing Oregon Envtl. Council v. Kunzman,
817 F.2d 484, 498 (9th Cir. 1987)). The Court also notes that when determining the issue
of substantial justification, the Court reviews only the “issues that led to remand” in

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determining if an award of fees is appropriate. See Toebler v. Colvin, 749 F.3d 830, 834
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(9th Cir. 2014)).
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The Supreme Court squarely addressed the meaning of the term “substantially
justified.” See Pierce v. Underwood, 487 U.S. 552, 564-68 (1988). The Court concluded

18 that “as between the two commonly used connotations of the word “substantially,” the
19 one most naturally conveyed by the phrase before us here is not “justified to a high
20 degree,” but rather “justified in substance or in the main” -- that is, justified to a degree
21 that could satisfy a reasonable person.” Id. at 565. The Court continued, noting that the
22 stated definition “is no different from the ‘reasonable basis both in law and fact’
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ORDER ON PLAINTIFF’S CONTESTED MOTION
FOR ATTORNEY’S FEES PURSUANT TO THE
EQUAL ACCESS TO JUSTICE ACT - 4

1 formulation adopted by the Ninth Circuit and the vast majority of other Courts of Appeals
2 that have addressed this issue.” Id. (citations omitted).
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In addition, as stated by the Ninth Circuit, a “substantially justified position must
have a reasonable basis both in law and fact.” Guiterrez v. Barnhart, 274 F.3d 1255, 1258
(9th Cir. 2001) (citing Pierce v. Underwood, supra, 487 U.S. at 565; Flores v. Shalala,

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49 F.3d 562, 569 (9th Cir. 1995)). The Court is to focus on whether or not the
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Administration was substantially justified in taking its original action; and, in defending
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the validity of the action in court. Id. at 1259 (citing Kali, supra, 854 F.2d at 332).
However, “if ‘the government’s underlying position was not substantially justified,’” the

11 Court must award fees and does not have to address whether or not the government’s
12 litigation position was justified. See Toebler, supra, 749 F.3d at 832 (quoting Meier v.
13 Colvin, 727 F.3d 867, 872 (9th Cir. 2013)). That is precisely the situation here.
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Defendant, in essence, takes the position that since the District Court found that

15 defendant’s position was justified, even though the Ninth Circuit reversed, no attorney
16 fees should be awarded. See Dkt. 34, pp. 2-3. If this were the standard, then plaintiffs
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would never recover attorney fees even though they were successful after appealing to
the Ninth Circuit and having the district court reversed. This should not be the standard.

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As noted by plaintiff, the Ninth Circuit has indicated that it is a “decidedly unusual
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case in which there is substantial justification under the EAJA even though the agency's
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decision was reversed as lacking in ‘reasonable, substantial, and probative evidence in the
record.’” Al-Harbi v. INS, 284 F.3d 1080, 1085 (9th Cir. 2002) (citations omitted).
Plaintiff persuasively argues as follows in his Reply in support of his fee petition:
ORDER ON PLAINTIFF’S CONTESTED MOTION
FOR ATTORNEY’S FEES PURSUANT TO THE
EQUAL ACCESS TO JUSTICE ACT - 5

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In its decision on the merits, the Ninth Circuit reversed the ALJ’s
decision because the ALJ improperly rejected [plaintiff’s] testimony
regarding his level of pain and the extent of his symptoms, and the ALJ
also improperly rejected the medical evidence largely based upon his
improper rejection of [plaintiff’s] testimony. (Internal citation to Dkt. 28,
pp. 2-7). Based on these errors, the Ninth Circuit remanded [plaintiff’s]
claims for new hearing.
On the issues upon which the Ninth Circuit remanded this case,
neither the ALJ’s decision or the Commissioner's defense of that
decision had a reasonable basis in law or in fact. However, because the
ALJ’s on these issues was not substantially justified, this Court need not
address whether the government's litigation position was substantially
justified.

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Dkt. 35, p. 3 (footnote and citations omitted).
As noted by plaintiff, defendant “argues that ‘the ALJ discredited several

11 physicians' opinions because they relied on incorrect information about plaintiff’s drug
12 and alcohol abuse; but, [defendant] here is citing to the District Court's decision that was
13 reversed by the Ninth Circuit." Id. As further noted by plaintiff, it is “the Ninth Circuit's
14 analysis that must be looked at to determine whether the ALJ’s decision was substantially
15 justified.” Id.
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Although the Ninth Circuit agreed with this Court that plaintiff had made
inconsistent statements over the course of numerous years regarding his drug and alcohol
use, the Ninth Circuit noted that there were other years during which his allegations

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appear to have been consistent with the medical record, and perhaps more importantly,
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that this factor alone was insufficient to justify the failure to credit fully plaintiff’s
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allegations. Dkt. 28, pp. 2-7. Therefore, the ALJ’s written decision did not have a
reasonable basis in law or fact.

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ORDER ON PLAINTIFF’S CONTESTED MOTION
FOR ATTORNEY’S FEES PURSUANT TO THE
EQUAL ACCESS TO JUSTICE ACT - 6

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Therefore, the government’s underlying position was not substantially justified.

2 See Guiterrez, supra, 274 F.3d at 1258 (citing Pierce v. Underwood, supra, 487 U.S. at
3 565).
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The Court also concludes that there are no special circumstances which render an
EAJA award in this matter unjust.

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Therefore, all that remains is to determine the amount of a reasonable fee. See 28
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U.S.C. § 2412(b); Hensley, supra, 461 U.S. at 433, 436-37; see also Roberts v. Astrue,
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2011 U.S. Dist. LEXIS 80907 (W.D. Wash. 2011), adopted by 2011 U.S. Dist. LEXIS
80913 (W.D. Wash. 2011).
Once the court determines that a plaintiff is entitled to a reasonable fee, “the

12 amount of the fee, of course, must be determined on the facts of each case.” Hensley,
13 supra, 461 U.S. at 429, 433 n.7. According to the U.S. Supreme Court, “the most useful
14 starting point for determining the amount of a reasonable fee is the number of hours
15 reasonably expended on the litigation multiplied by a reasonable hourly rate.” Hensley,
16 supra, 461 U.S. at 433.
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Here, plaintiff prevailed on the single claim of whether or not the denial of his
social security application was based on substantial evidence in the record as a whole and

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not based on harmful legal error. When the case involves a “common core of facts or will
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be based on related legal theories . . . . the district court should focus on the
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significance of the overall relief obtained by the plaintiff in relation to the hours
reasonably expended on the litigation.” See Hensley, supra, 461 U.S. at 435. The

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ORDER ON PLAINTIFF’S CONTESTED MOTION
FOR ATTORNEY’S FEES PURSUANT TO THE
EQUAL ACCESS TO JUSTICE ACT - 7

1 Supreme Court concluded that where a plaintiff “has obtained excellent results, his
2 attorney should recover a fully compensatory fee.” Id.
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The Court concludes based on a review of the relevant evidence that the plaintiff
here obtained excellent results. Therefore, the Court will look to “the hours reasonably
expended on the litigation,” which, when combined with the reasonable hourly rate,

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encompasses the lodestar. See Hensley, supra, 461 U.S. at 435. Other relevant factors
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identified in Johnson, supra, 488 F.2d at 717-19 “usually are subsumed within the initial
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calculation of hours reasonably expended at a reasonably hourly rate.” 1 See Hensley,
supra, 461 U.S. at 434 n.9 (other citation omitted); see also Kerr v. Screen Extras Guild,

11 Inc., 526 F.2d 67, 70 (9th Cir. 1975) (adopting Johnson factors); Stevens v. Safeway,
12 2008 U.S. Dist. LEXIS 17119 at *40-*41 (C.D. Cal. 2008) (“A court employing th[e
13 Hensley lodestar method of the hours reasonably expended multiplied by a reasonable
14 hourly rate] to determine the amount of an attorney’s fees award does not directly
15 consider the multi-factor test developed in Johnson, supra, 488 F.2d at 717-19, and Kerr,
16 supra, 526 F.2d at 69-70”); but see Goodwin v. Astrue, 2012 U.S. Dist. LEXIS 97651 at
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*10-*12, *14-*20 (W.D. Wash. 2012) (applying Johnson factors), adopted by 2012 U.S.
Dist. LEXIS 97650 (W.D. Wash. 2012). These guidelines are consistent with Washington

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The Johnson factors are: (1) The time and labor involved; (2) the novelty and difficulty of the questions involved; (3)
the skill requisite to perform the legal service properly; (4) the preclusion of other employment by the attorney due to acceptance
of the case; (5) the customary fee; (6) whether the fee is fixed or contingent: (7) time limitations imposed by the client or the
circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10);
the ‘undesirability’ of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in
similar cases. Johnson, supra, 488 F.2d at 717-19) (citations omitted); see also United States v.Guerette, 2011 U.S. Dist. LEXIS
21457 at *4-*5 (D. Hi 2011) (“factors one through five have been subsumed” in the determination of a number of hours
reasonably expended multiplied by a reasonable rate); but see City of Burlington v. Dague, 505 U.S. 557 (1992) (rejecting factor
6 of contingent nature of the fee).

ORDER ON PLAINTIFF’S CONTESTED MOTION
FOR ATTORNEY’S FEES PURSUANT TO THE
EQUAL ACCESS TO JUSTICE ACT - 8

1 Rules of Professional Conduct 1.5.
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Given the facts and circumstances of the matter herein, and based on the briefing,

3 declarations and attorney time sheet, the Court concludes that the amount of time
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incurred by plaintiff’s attorney in this matter is reasonable.
Specifically, following a review of plaintiff’s request, the Court finds reasonable

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plaintiff’s request for expenses in the amount of $36.54 and for attorney’s fees in the
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amount of $15,192.95.
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This attorney’s fee ($15,192.95) portion is $14,801.05 ($14,281.05 in attorney fees
and $520 in paralegal fees) for the main case (including appeal to the Ninth Circuit), plus

11 $391.90 (2.0 x $195.95) for the reply, representing 75 attorney hours of work in the main
12 case (and 5.2 paralegal hours), as well as two hours defending his fee petition.
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Plaintiff also is awarded $397.20 in costs.

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CONCLUSION

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Plaintiff’s request for $36.54 in expenses is granted.

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Plaintiff is awarded $15,192.95 in attorney’s fees.

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This motion for attorney’s fees and expenses (Dkt. 33) is granted pursuant to the
EAJA and consistent with Astrue v. Ratliff, 130 S. Ct. 2521, 2524, 2010 U.S. LEXIS

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4763 at ***6-***7 (2010).
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Plaintiff also is awarded $397.20 in costs pursuant to 28 U.S.C. § 1920.
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Plaintiff’s award is subject to any offset allowed pursuant to the Department of
Treasury’s Offset Program. See id. at 2528. If it is determined that plaintiff’s EAJA fees

24 are not subject to any offset, the check for EAJA fees shall be made payable to plaintiff’s
ORDER ON PLAINTIFF’S CONTESTED MOTION
FOR ATTORNEY’S FEES PURSUANT TO THE
EQUAL ACCESS TO JUSTICE ACT - 9

1 counsel, either by direct deposit or by check payable to Eitan Kassel Yanich, Esq., based
2 on plaintiff’s assignment of these amounts to plaintiff’s attorney. The checks for EAJA
3 fees, expenses and costs shall be mailed to plaintiff’s counsel at Eitan Kassel Yanich,
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Esq., PLLC, 203 Fourth Avenue E., Suite 321, Olympia, WA 98501.
Dated this 9th day of March, 2018.

A

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J. Richard Creatura
United States Magistrate Judge

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ORDER ON PLAINTIFF’S CONTESTED MOTION
FOR ATTORNEY’S FEES PURSUANT TO THE
EQUAL ACCESS TO JUSTICE ACT - 10