Coombs v. Colvin

Filing 22

ORDER GRANTING 19 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 MARY A. COOMBS, 8 9 10 11 12 Plaintiff, CASE NO. C16-5878-BAT ORDER GRANTING EAJA FEES AND COSTS v. NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant. 13 Mary A. Coombs, moves for EAJA fees and expenses of $8,239.33. Dkt. 19. The 14 Commissioner argues her position is substantially justified and no fees should be awarded. Dkt. 15 20. The Court rejects this arguments and GRANTS plaintiff’s motion. 16 Substantial justification requires the government to demonstrate its position had a 17 reasonable basis in both law and fact at each stage of the proceedings, including both the 18 government’s litigation position, and the underlying agency action giving rise to the civil action. 19 Tobeler v. Colvin, 749 F.3d 830, 832–34 (9th Cir. 2014). Deviating from this standard, the 20 Commissioner argues the issue is “whether the Commissioner was substantially justified in 21 defending the errors identified by the Court.” Dkt. 20 at 2. But 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 Ms. Coombs’ motion, Dkt. 19, and ORDERS 9 1. Plaintiff is awarded EAJA fees and expenses in the sum of $8,329.33. The Court 10 has reviewed the pleadings and finds the fee requested is reasonable. Subject to offsets allowed 11 under the Treasury Offset Program, under Astrue v. Ratliff, 130 S. Ct. 2521 (2010), payment of 12 the award shall be sent to Plaintiff’s attorney Eitan Kassel Yanich at his address: Eitan Kassel 13 Yanich, PLLC, 203 Fourth Avenue E., Suite 321, Olympia, WA. 98501. 14 2. The Commissioner shall consider Plaintiff’s assignment of EAJA fees and 15 expenses to her attorney. Under Ratliff, the assignment depends on whether the EAJA award is 16 subject to offsets allowed under the Treasury Offset Program. The Commissioner will contact the 17 Department of Treasury to determine whether the EAJA award is subject to any offset. If not, the EAJA award shall paid directly to plaintiff’s attorney Eitan Kassel Yanich, either by direct 18 deposit or by check payable to him and mailed to his address. 19 DATED this 30th of October, 2017. 20 21 A 22 BRIAN A. TSUCHIDA United States Magistrate Judge 23 ORDER GRANTING EAJA FEES 3

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