Price v. Berryhill

Filing 22

ORDER Granting 19 Motion for Attorney Fees signed by Hon. Brian A Tsuchida. (KMP)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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MARILYN L. PRICE,
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Plaintiff,

ORDER FOR EAJA FEES AND
EXPENSES

v.
NANCY A BERRYHILL, Acting Commissioner
of Social Security,
Defendant.

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CASE NO. C17-5149-BAT

Plaintiff Marilyn L. Price, the prevailing party in this Social Security disability appeal,

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moves under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412, for an award of

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attorney’s fees of $6,989.58, as well as expenses of $5.81. Dkt. 19. The Commissioner opposes

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the motion, arguing that no fees should be awarded because her position was substantially

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justified. Dkt. 20. The Court rejects the Commissioner’s arguments and GRANTS plaintiff’s

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motion.

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The EAJA authorizes payment of attorney’s fees to a prevailing party in an action against

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the United States, unless the court finds that the government’s position on the merits in the

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litigation was “substantially justified.” 28 U.S.C. § 2412(d)(1)(A). To show that its position was

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“substantially justified” the government must demonstrate that its position had a reasonable basis

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in both law and fact at each stage of the proceedings, including both the government’s litigation

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position and the underlying agency action giving rise to the civil action. Tobeler v. Colvin, 749

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ORDER FOR EAJA FEES AND EXPENSES - 1

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F.3d 830, 832–34 (9th Cir. 2014).
The Commissioner attempts to reframe the issue as “whether the Commissioner’s

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position was substantially justified despite the evidence that the Appeals Council decided to

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exclude from the record.” Dkt. 27 at 2. However, the “position of the United States” includes

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

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action. Meier v. Colvin, 727 F.3d 867, 870 (9th Cir. 2014). The Commissioner does no more than

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argue that she was right in her litigation position and the Court was wrong in deciding the case.

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The Court does not relitigate the underlying decision in deciding EAJA fee motions.

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The Commissioner misleadingly asserts that this Court has recently considered a

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factually analogous situation and sided with the Commissioner. Dkt. 29 at 2. However, the case

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the Commissioner refers to, Holster v. Berryhill, Case No. C17-5578-BAT, involved a request

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for remand under sentence six of 42 U.S.C. § 405(g), which entails no substantive evaluation of

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the ALJ’s decision. This case involves a request for remand under sentence four of 42 U.S.C.

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§ 405(g), which requires an evaluation of the merits of the ALJ’s decision in light of the new

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evidence. The Court found that the ALJ’s decision was no longer supported by substantial

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evidence in light of the new evidence. The cases are not factually analogous and the Court’s

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decision in Holster does not support the Commissioner’s litigation position in this case.

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The Commissioner’s positon in this litigation was not substantially justified. The Court
therefore GRANTS Ms. Price’s motion (Dkt. 19).
The Commissioner did not object to the amount of fees Ms. Price requested. The Court

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has reviewed Ms. Price’s motion and supporting declarations and the record, and finds the

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amount requested is reasonable. The Court therefore ORDERS:

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Plaintiff is hereby awarded EAJA fees of $6,989.58 and expenses in the sum of $5.81. If

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ORDER FOR EAJA FEES AND EXPENSES - 2

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the U.S. Department of the Treasury determines that Plaintiff’s EAJA fees, expenses, and costs

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are not subject to offset allowed under the Department of the Treasury’s Offset Program (TOPS),

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then the check for EAJA fees, expenses, and costs shall be made payable to plaintiff’s attorney

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Eitan Kassel Yanich at his address: Eitan Kassel Yanich, PLLC, 203 Fourth Avenue E., Suite

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321, Olympia, WA. 98501.

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DATED this ______ day of _________, 2018.
5th
February

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A

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BRIAN A. TSUCHIDA
United States Magistrate Judge

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ORDER FOR EAJA FEES AND EXPENSES - 3