Corona v. Colvin

Filing 25

ORDER granting 22 Motion for EAJA Attorney Fees by Judge J Richard Creatura.(SH)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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SUSANNA CORONA,
Plaintiff,

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v.
CAROLYN W. COLVIN, Acting
Commissioner of the Social Security
Administration,

CASE NO. 3:15-cv-05629 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
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Local Magistrate Judge Rule MJR 13 (see also Notice of Initial Assignment to a U.S.
Magistrate Judge and Consent Form, Dkt. 5; Consent to Proceed Before a United States

19 Magistrate Judge, Dkt. 6). This matter comes before the Court on plaintiff’s contested
20 motion for attorney’s fees pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412
21 (hereinafter “EAJA”) (see Dkt. 22, 23, 24; see also Dkt. 21).
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Subsequent to plaintiff’s success at obtaining a reversal of the decision of the

23 Social Security Administration, defendant Commissioner challenged plaintiff’s request
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ORDER ON PLAINTIFF’S CONTESTED MOTION
FOR ATTORNEY’S FEES PURSUANT TO THE
EQUAL ACCESS TO JUSTICE ACT - 1

1 for statutory attorney’s fees on the grounds that the requested fees are unreasonable given
2 the circumstances of this case (see Response, Dkt. 23, p. 1 (citing 28 § U.S.C. 2412(b))).
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After considering and reviewing the record, including plaintiff’s Application for
Fees, and the attached time and expense sheet (see Dkt. 22), as well as the excellent
results obtained by plaintiff’s counsel, the Court concludes that plaintiff’s fee request is

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reasonable (see id.; see also Reply, Dkt. 24). Simply because a few sentences were not
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entirely helpful does not render the number of hours expended unreasonable
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Therefore, plaintiff’s motion for fees and expenses should be granted pursuant to
the EAJA in the amount of $7,206.98 in attorney’s fees and $5.70 for expenses.
BACKGROUND and PROCEDURAL HISTORY

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On July 20, 2016, this Court issued an Order reversing and remanding this matter

13 for further consideration by the Administration (see Dkt. 19). The Court found that the
14 ALJ erred when evaluating plaintiff’s allegations and testimony (see id., pp. 16-21). This
15 matter was reversed pursuant to sentence four of 42 U.S.C. § 405(g) for further
16 consideration due to the harmful error in the evaluation of plaintiff’s allegations and
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testimony (see id.).
Subsequently, plaintiff filed a motion for EAJA attorney’s fees, to which

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defendant objected (see Dkts. 22, 23). Defendant asserts that the amount of hours
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expended are unreasonable (Dkt. 23, p. 1). Plaintiff filed a reply (see Dkt. 24).
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STANDARD OF REVIEW
In any action brought by or against the United States, the EAJA requires that "a

24 court shall award to a prevailing party other than the United States fees and other
ORDER ON PLAINTIFF’S CONTESTED MOTION
FOR ATTORNEY’S FEES PURSUANT TO THE
EQUAL ACCESS TO JUSTICE ACT - 2

1 expenses . . . . unless the court finds that the position of the United States was
2 substantially justified or that special circumstances make an award unjust." 28 U.S.C. §
3 2412(d)(1)(A).
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According to the United States Supreme Court, “the fee applicant bears the burden
of establishing entitlement to an award and documenting the appropriate hours

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expended.” Hensley v. Eckerhart, 461 U.S. 424, 437 (1983). The government has the
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burden of proving that its positions overall were substantially justified. Hardisty v.
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Astrue, 592 F.3d 1072, 1076 n.2 (9th Cir. 2010), cert. denied, 179 L.Ed.2d 1215, 2011
U.S. LEXIS 3726 (U.S. 2011) (citing Flores v. Shalala, 49 F.3d 562, 569-70 (9th Cir.

11 1995)). Further, if the government disputes the reasonableness of the fee, then it also
12 “has a burden of rebuttal that requires submission of evidence to the district court
13 challenging the accuracy and reasonableness of the hours charged or the facts asserted by
14 the prevailing party in its submitted affidavits." Gates v. Deukmejian, 987 F.2d 1392,
15 1397-98 (9th Cir. 1992) (citations omitted). The Court has an independent duty to review
16 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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DISCUSSION

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In this matter, plaintiff clearly was the prevailing party because she received a
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remand of the matter to the Administration for further consideration (see Order on
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Complaint, Dkt. 19). In order to award a prevailing plaintiff attorney fees, the EAJA also
requires a finding that the position of the United States was not substantially justified. 28

24 U.S.C. § 2412(d)(1)(B).
ORDER ON PLAINTIFF’S CONTESTED MOTION
FOR ATTORNEY’S FEES PURSUANT TO THE
EQUAL ACCESS TO JUSTICE ACT - 3

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The Court agrees that the government’s position in this matter as a whole was not

2 substantially justified. See Guitierrez v. Barnhart, 274 F.3d 1255, 1258-59 (9th Cir.
3 2001) (citations omitted).
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The undersigned also concludes that no special circumstances make an award of
attorney fees unjust. See 28 U.S.C. § 2412(d)(1)(A). Therefore, all that remains is to

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determine the amount of a reasonable fee. See 28 U.S.C. § 2412(b); Hensley, supra, 461
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U.S. at 433, 436-37; see also Roberts v. Astrue, 2011 U.S. Dist. LEXIS 80907 (W.D.
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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

11 amount of the fee, of course, must be determined on the facts of each case.” Hensley,
12 supra, 461 U.S. at 429, 433 n.7. According to the U.S. Supreme Court, “the most useful
13 starting point for determining the amount of a reasonable fee is the number of hours
14 reasonably expended on the litigation multiplied by a reasonable hourly rate.” Hensley,
15 supra, 461 U.S. at 433. Defendant does not challenge the hourly rate (Dkt. 23, p. 1).
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Here, plaintiff prevailed on the single claim of whether the denial of her social
security application was based on substantial evidence in the record as a whole and not
based on harmful legal error. When the case involves a “common core of facts or will be

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based on related legal theories . . . . the district court should focus on the significance
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of the overall relief obtained by the plaintiff in relation to the hours reasonably expended
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on the litigation.” See Hensley, supra, 461 U.S. at 435. The Supreme Court concluded
that where a plaintiff “has obtained excellent results, his attorney should recover a fully

24 compensatory fee.” Id.
ORDER ON PLAINTIFF’S CONTESTED MOTION
FOR ATTORNEY’S FEES PURSUANT TO THE
EQUAL ACCESS TO JUSTICE ACT - 4

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Because the Court concludes based on a review of the relevant evidence that the

2 plaintiff here obtained excellent results, the Court will look to “the hours reasonably
3 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
identified in Johnson, supra, 488 F.2d at 717-19, “usually are subsumed within the initial
calculation of hours reasonably expended at a reasonably hourly rate.” 1 See Hensley,

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supra, 461 U.S. at 434 n.9 (other citation omitted); see also Kerr v. Screen Extras Guild,
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Inc., 526 F.2d 67, 70 (9th Cir. 1975) (adopting Johnson factors); Stevens v. Safeway,
2008 U.S. Dist. LEXIS 17119 at *40-*41 (C.D. Cal. 2008) (“A court employing th[e

11 Hensley lodestar method of the hours reasonably expended multiplied by a reasonable
12 hourly rate] to determine the amount of an attorney’s fees award does not directly
13 consider the multi-factor test developed in Johnson, supra, 488 F.2d at 717-19, and Kerr,
14 supra, 526 F.2d at 69-70”); but see Goodwin v. Astrue, 2012 U.S. Dist. LEXIS 97651 at
15 *10-*12, *14-*20 (W.D. Wash. 2012) (applying Johnson factors), adopted by 2012 U.S.
16 Dist. LEXIS 97650 (W.D. Wash. 2012).
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The Johnson factors are: (1) The time and labor involved; (2) the novelty and difficulty
19 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
20 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,
21 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,
22 488 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
23 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
24 the fee).
ORDER ON PLAINTIFF’S CONTESTED MOTION
FOR ATTORNEY’S FEES PURSUANT TO THE
EQUAL ACCESS TO JUSTICE ACT - 5

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As defendant does not object to plaintiff’s request for reimbursement for expenses

2 and does not object to plaintiff’s requested hourly rate for his attorney’s fees request, the
3 gravamen of defendant’s contentions here concerns “the number of hours reasonably
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expended on the litigation” (see Dkt. 23, p. 1). See also Hensley, supra, 461 U.S. at 433.
The Court has reviewed the facts of this case. See Hensley, supra, 461 U.S. at 429,

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433 n.7 (once the court determines that a plaintiff is entitled to a reasonable fee, “the
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amount of the fee, of course, must be determined on the facts of each case”). As noted in
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the (second) declaration from plaintiff’s attorney, in this case, as in multiple other
instances regarding fee petitions from this attorney, the attorney’s brother, counselor

11 Noah Yanich, “a very experienced litigator,” first “prepared a detailed summary of
12 [plaintiff’s] file, with precise citations to the court transcript and with legal analysis”
13 (Dkt. 24, Attachment 1, p. 2). Subsequently, plaintiff’s main attorney completed the
14 preparation of the opening brief (id.). Plaintiff’s attorney declares that the time expended
15 by Noah Yanich on this case “did not duplicate any of my work, nor did my time
16 duplicate any of his work; the time he expended on the summary saved me from having
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to expend that time preparing such a summary” (id.). Plaintiff’s attorney points out that
he did not represent plaintiff at her administrative hearing, “and it therefore took some

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extra time to review her file and brief her case” (id.).
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However, defendant contends that the “joint effort resulted in a brief that recited
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medical evidence from many medical sources without raising any substantive legal
errors” (Dkt. 23, p. 2 (citing Dkt. 11, pp. 3-7)). Defendant contends that many of the

24 hours expended therefore “were unnecessary and unreasonable” (id.).
ORDER ON PLAINTIFF’S CONTESTED MOTION
FOR ATTORNEY’S FEES PURSUANT TO THE
EQUAL ACCESS TO JUSTICE ACT - 6

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In this matter currently before the Court, the Court has reviewed the record, and

2 has reviewed again plaintiff’s Opening Brief and this Court’s Order on plaintiff’s
3 complaint (see Dkts. 11, 19, 16). The Court also has considered defendant’s argument
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presented here regarding the large amount of hours incurred preparing the Opening Brief
(see Dkt. 23). Although defendant is correct that the number of hours incurred is

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somewhat large in this matter, the Court does not agree with defendant’s argument that
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plaintiff included unnecessary or unhelpful arguments or summaries to the Court. In large
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part, plaintiff’s summaries were connected to specific arguments regarding alleged errors
(see Dkt. 11). For example, plaintiff’s summary of the medical evidence supported her

11 argument that “the medical findings from [plaintiff’s] treating and examining physicians
12 provide an objective evidentiary basis for [plaintiff’s] testimony about her symptoms and
13 limitations” (see id.). As noted previously, the Court concluded that the ALJ erred when
14 failing to credit fully plaintiff’s allegations and testimony, and reversed this matter on this
15 basis (see Dkt. 19). The Court concludes that defendant’s argument that plaintiff’s
16 summaries here resulted in unnecessary and unreasonable hours being incurred by
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plaintiff’s attorneys is not persuasive.
The Court has considered the fact, noted by plaintiff, that it “takes time to

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carefully review a Social Security court transcript, to analyze the evidence, to determine
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which evidence should be included in a brief, and to summarize the evidence accurately,
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with citations to the record” (Dkt. 24, p. 3). The Court also notes plaintiff’s statement in
her attorney’s declaration that “if the Commissioner had carefully reviewed this case after

24 receiving [plaintiff’s] Opening Brief and had then agreed to remand the case based upon
ORDER ON PLAINTIFF’S CONTESTED MOTION
FOR ATTORNEY’S FEES PURSUANT TO THE
EQUAL ACCESS TO JUSTICE ACT - 7

1 the errors which the Commissioner now concedes were not substantially justified, I
2 would not have had to expend an additional 7.0 hours preparing a reply brief,” noting that
3 “the Commissioner’s choice to litigate rather than settle contributed significantly to the
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amount of time that we expended in this case” (Dkt. 24-1, p. 3).
Regarding defendant’s argument that the joint effort of plaintiff’s two attorneys

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resulted in many hours that “were unnecessary and unreasonable,” (Dkt. 23, p. 2), the
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Court notes plaintiff’s citation to a Ninth Circuit case in which the Ninth Circuit indicated
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that it is not the job of the court “to impose its own judgment regarding the best way to
operate a law firm . . . .” (Dkt. 24, p. 2 (quoting Mareno v. City of Sacramento, 534

11 F.3d 1106, 1115 (9th Cir. 2008))). As noted by plaintiff, according to the Supreme Court,
12 where a plaintiff “has obtained excellent results, his attorney should recover a fully
13 compensatory fee.” See Hensley, supra, 461 U.S. at 435; see also Costa v. Comm’r of
14 Soc. Sec. Admin., 690 F.3d 1132, 1136 (9th Cir. 2012) (questioning the usefulness of
15 reviewing the amount of time incurred in other cases to decide how much time an
16 attorney could reasonably spend on a particular case).
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Defendant offers only one argument beyond the implied argument that simply
utilizing the services of multiple attorneys justifies a fee reduction or makes the hours

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expended unreasonable. Defendant contends that plaintiff’s Opening Brief included a
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recitation of “medical evidence from many medical sources without raising any
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substantive legal errors, and a recitation of plaintiff’s testimony, some of which was not
clearly related to an accompanying argument” (Dkt. 23, p. 2 (citing Dkt. 11, pp. 3-7, 10-

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

1 13)). Defendant’s argument has some merit; however, the unhelpful inclusion of some
2 evidence and testimony does not render the number of hours unreasonable.
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It is not the job of the Court “to impose its own judgment regarding the best way
to operate a law firm . . . .” and it is not the job of the Court to impose its own
judgment regarding the best way to make a legal argument. Mareno, 534 F.3d at 1115.

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Although there were recitations here and there that the Court did not find particularly
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helpful, and this practice does tend to bury the quality arguments in minutia, the evidence
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presented therein nevertheless supports plaintiff’s arguments.
As noted, if the government disputes the reasonableness of the fee, then it “has a

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11 burden of rebuttal that requires submission of evidence to the district court challenging
12 the accuracy and reasonableness of the hours charged or the facts asserted by the
13 prevailing party in its submitted affidavits." See Gates v. Deukmejian, 987 F.2d 1392,
14 1397-98 (9th Cir. 1992) (citations omitted).
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The Court notes that plaintiff’s attorney did not represent plaintiff at her

16 administrative hearing and agrees with the statement in the attorney’s (second)
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declaration that “it therefore took some extra time to review her file and brief her case”
(Dkt. 24-1, p. 2). The Court also notes the declaration from plaintiff’s attorney that the

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fee request includes “a true and accurate itemization of the time and expenses actually
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expended in Federal Court on the most recent Federal Court proceedings which resulted
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in a Sentence 4 remand,” (Dkt. 22-2, p. 1). As plaintiff’s attorney “has obtained excellent
results, his attorney should recover a fully compensatory fee.” Hensley, supra, 461 U.S.

24 at 435.
ORDER ON PLAINTIFF’S CONTESTED MOTION
FOR ATTORNEY’S FEES PURSUANT TO THE
EQUAL ACCESS TO JUSTICE ACT - 9

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Finally, the Court has considered the statement in the declaration from plaintiff’s

2 attorney that the “time [he] expended in this case is the amount of time that in [his]
3 professional judgment [he] found necessary to present [his] client’s case effectively”
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(id.). As cited by plaintiff, according to the Ninth Circuit, “[by] and large, the court
should defer to the winning lawyer’s professional judgment as to how much time he was

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required to spend on the case; after all, he won, and might not have had he been more of a
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slacker” (Dkt. 24, p. 5 (citing Mareno, 534 F.3d at 1112)).
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Given the facts and circumstances of the matter herein, and based on plaintiff’s
briefing and his petition for fees, with the itemized time expenditures included, the Court

11 concludes that the time incurred by plaintiff’s attorney in this matter is reasonable. See
12 Hensley, supra, 461 U.S. at 435.
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Specifically, following a review of plaintiff’s request, the Court finds reasonable

14 plaintiff’s request for expenses in the amount of $5.70 and for attorney’s fees in the
15 amount of $7,206.98.
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CONCLUSION
Plaintiff’s request for $5.70 in expenses is granted.
Plaintiff is awarded $7,206.98 in attorney’s fees, pursuant to the EAJA and

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consistent with Astrue v. Ratliff, 130 S. Ct. 2521, 2524 (2010).
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Plaintiff’s award is subject to any offset allowed pursuant to the Department of
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Treasury’s Offset Program. See id. at 2528. If it is determined that plaintiff’s EAJA fees
are not subject to any offset, the check for EAJA fees shall be made payable to plaintiff’s

24 counsel, either by direct deposit or by check payable to Eitan Kassel Yanich, Esq., based
ORDER ON PLAINTIFF’S CONTESTED MOTION
FOR ATTORNEY’S FEES PURSUANT TO THE
EQUAL ACCESS TO JUSTICE ACT - 10

1 on plaintiff’s assignment of these amounts to plaintiff’s attorney (see Dkt. 21). The
2 checks for EAJA fees and expenses shall be mailed to plaintiff’s counsel at Law Offices
3 of Eitan Kassel Yanich PLLC, 203 Fourth Avenue E, Suite, 321, Olympia, WA 98501.
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Dated this 27th day of December, 2016.

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 - 11