Dunbar v. Colvin

Filing 20

ORDER granting Plaintiff's 17 Motion for Attorney Fees in the amount of $8,561.71 and expenses of $5.70. Signed by U.S. District Judge John C Coughenour. (PM)

THE HONORABLE JOHN C. COUGHENOUR

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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JAMIE D. DUNBAR,

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CASE NO. C16-5918-JCC
Plaintiff,

ORDER

v.

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NANCY A. BERRYHILL, Acting
Commissioner of Social Security,

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Defendant.

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This matter comes before the Court on Plaintiff’s motion for an award of attorney fees

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(Dkt. No. 17). Having thoroughly considered the parties’ briefing and the relevant record, the

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Court finds oral argument unnecessary and GRANTS Plaintiff’s motion (Dkt. No. 17) for the

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reasons explained herein.

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I.

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BACKGROUND
Plaintiff appealed the Commissioner of Social Security’s (“Defendant”) denial of her

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application for disability benefits. (Dkt. No. 1-1.) The Court reversed the Commissioner’s final

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decision and remanded the matter for further administrative proceedings. (Dkt. No. 14 at 1.) The

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Court determined the administrative law judge (“ALJ”) failed to consider relevant opinions of

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Plaintiff’s treating physicians as well as certain lay witness testimony. (See generally id.)

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Although Plaintiff prevailed, the Court rejected one of her claims on appeal. (Id. at 15–16) (“Ms.
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Dunbar recite[d] a long list of other medical evidence which she argues supports her

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interpretation of the evidence, i.e., that she is disabled . . . [h]owever, this conclusory argument

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fails to explain how the ALJ harmfully erred in evaluating, or failing to evaluate, the recited

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evidence.”).

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Plaintiff now moves for an award of attorney fees in the amount of $8,561.71 and

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expenses of $5.70, pursuant to the Equal Access to Justice Act, 28 U.S.C. section 2412

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(“EAJA”). (Dkt. No. 17 at 1.) Defendant concedes that Plaintiff is entitled to EAJA attorney fees,

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but argues that the amount requested is unreasonable. (Dkt. No. 18 at 1.) Defendant asks the

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Court to reduce the award by $4,177.40 to account for 19.5 hours of what it deems “unnecessary

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billing” Plaintiff’s counsel spent on her opening brief. (Id. at 3.) In addition to objecting to

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Defendant’s request, Plaintiff asks the Court to order Defendant to pay its attorney fees and

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expenses for having to file a reply in opposition. (Dkt. No. 19 at 7.)

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II.

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DISCUSSION
Under EAJA, attorney fee awards must be reasonable. 28 U.S.C. § 2412(d)(1)(A); see also,

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Hensley v. Eckerhart, 461 U.S. 424, 433 (1983) (“[i]t remains for the district court to determine what

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fee is ‘reasonable.’”). To determine the amount of a reasonable fee, a court starts with “the number of

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hours expended on the litigation multiplied by a reasonable hourly rate.” Hensley, 461 U.S. at 433

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n.7. From this calculation, the Court should exclude hours that were not “reasonably expended.” Id.

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at 434. However, the “important factor of the ‘results obtained’” may lead a district court to adjust a

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fee. Id.

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Defendant argues that Plaintiff’s EAJA award should be reduced for hours that Plaintiff’s

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counsel allegedly spent on claims that were not ultimately successful on appeal. (Dkt. No. 18 at 1.)

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Defendant points to 19.5 hours Plaintiff reported for drafting her opening brief—time that is

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categorized as reviewing and incorporating “Dunbar’s testimony” and “the documentary evidence”

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into the brief. (Dkt. No. 17-3 at 1.) Defendant notes that the Court rejected Plaintiff’s argument that

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the ALJ failed to consider “other medical evidence” that was consistent with the opinions of her

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treating physicians. (Dkt. No. 18 at 2.) The Court also noted that Plaintiff’s claim was conclusory

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because it failed to explain how the ALJ harmfully erred in evaluating or failing to evaluate the

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recited evidence. (Dkt. No. 14 at 15–16.) Defendant concludes that it was therefore unreasonable for

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Plaintiff’s counsel to expend 19.5 hours on arguments that were ultimately rejected. (Dkt. No. 18 at

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2.)

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The Court concludes that Defendant’s proposed reduction is overly harsh. Ostensibly,

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Defendant is asking the Court to subtract all of the initial research and drafting that Plaintiff’s

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counsel expended on her opening brief. (Dkt. No. 18 at 2.) The Court does not believe that the entire

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19.5 hours of work Defendant identifies necessarily went to preparing sections of the opening brief

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that were unavailing. Furthermore, it is impossible for the Court to parse counsel’s billing records to

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determine what amount of time went toward preparing an argument that was ultimately unsuccessful

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on appeal. Defendant’s proposed reduction is especially harsh when considering that Plaintiff

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prevailed on appeal and her case was remanded for additional proceedings. See Hensley, 461 U.S. at

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435 (“Litigants in good faith may raise alternative legal grounds for a desired outcome, and the

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court's rejection of or failure to reach certain grounds is not a sufficient reason for reducing a fee. The

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result is what matters.”)

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Rather than view the 19.5 hours in isolation, the Court asks whether the total amount of time

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Plaintiff’s counsel spent drafting the opening brief was reasonable. Plaintiff’s counsel reported

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expending 28.1 hours on drafting the opening brief. (Dkt. No. 14-3.) That figure is out of a total of

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41.8 hours spent on the entire case. (Id.) The Court concludes that 28.1 hours was a reasonable figure

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given the success achieved by Plaintiff. There is no evidence to suggest that Plaintiff’s counsel made

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arguments in her opening brief that were not in good faith. Moreover, the total time expended is

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consistent with similar cases heard by this Court. See, e.g., Vanderslice v. Berryhill, Case No. C16-

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5293-JCC, Dkt. No. 24 (W.D. Wash. Mar. 14, 2018) (25.1 hours expended on opening brief);

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Goodman v. Colvin, Case No. C16-0285-JCC, Dkt. No. 25 (W.D. Wash. Sep. 19, 2017) (29.8 hours

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expended on opening brief). The Court concludes that it would be arbitrary to lower the award based

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on a single argument that was ultimately rejected by the Court.

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The Court DENIES Plaintiff’s additional request for attorney fees and expenses for having to

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oppose Defendant’s motion because the Government’s position was not unreasonable. (Dkt. No. 19

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at 7.)

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III.

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CONCLUSION
For the foregoing reasons, Plaintiff’s motion for attorney fees (Dkt. No. 17) is

GRANTED. Plaintiff is awarded attorney fees in the amount of $8,561.71 and expenses of $5.70.

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If it is determined that Plaintiff’s EAJA fees are not subject to any offset allowed under

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the Department of the Treasury’s Offset Program, then the check for EAJA fees shall be made

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payable to Eitan Kassel Yanich, based upon Plaintiff’s assignment of these amounts to Plaintiff’s

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attorney. Any check for EAJA fees shall be mailed to Plaintiff’s counsel, Eitan Kassel Yanich, at

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203 Fourth Avenue E., Suite 321, Olympia, WA. 98501. The Clerk is DIRECTED to send copies

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of this order to counsel of record.

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DATED this 27th day of April 2018.

A

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John C. Coughenour
UNITED STATES DISTRICT JUDGE

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