United States District Court, D. Oregon, Portland Division
ANCER L. HAGGERTY, District Judge.
On September 25, 2011, this court found that the decision of the Commissioner regarding Jason David Maglecic must be reversed and remanded for further proceedings consistent with the Opinion and Order issued on that date and the parameters provided therein. On December 11, 2013, plaintiffs counsel filed an amended application  for an award of attorney fees pursuant to the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412, in the amount of $5, 279.52. Defendant Commissioner filed a Response to this application. Defendant objects to plaintiffs Second Application for Fees Pursuant to EAJA, asserting that the Commissioner's position was substantially justified.
EAJA provides in relevant part:
Except as otherwise specifically provided by statute, a court shall award to a prevailing patty other than the United States fees and other expenses, in addition to any costs awarded pursuant to subsection (a), incurred by that patty in any civil action (other than cases sounding in tort), including proceedings for judicial review of agency action, brought by or against the United States in any court having jurisdiction of that action, 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. § 2412(d)(1)(A).
Accordingly, to be eligible for attorney fees under EAJA: (1) the claimant must be a "prevailing party"; (2) the government's position must not have been "substantially justified"; and (3) no special circumstances exist that make an award of attorney fees unjust. See Comm'r, Immigration & Naturalization Serv. v. Jean, 496 U.S. 154, 158 (1990).
The burden of proof is on the government to show that its position was substantially justified. Scarborough v. Principi, 541 U.S. 401, 403 (2004); see also Gonzalez v. Free Speech Coal., 408 F.3d 613, 618 (9th Cir. 2005) (the government bears the burden of showing that its conduct was substantially justified at each stage of the proceedings); Gutierrez v. Barnhart, 274 F.3d 1255, 1258 (9th Cir. 2001).
A position is substantially justified when there is a "reasonable basis in law and fact" for advancing the position. See Pierce v. Underwood, 487 U.S. 552, 565-66 (1988); see also Gonzales, 408 F.3d at 618 (holding that a position is substantially justified if there is a dispute over which reasonable minds could differ). A position can be substantially justified even though it is incorrect. Pierce, 487 U.S. at 566 n.2. Stated differently, the Commissioner's position is substantially justified when it is justified to a degree that could satisfy a reasonable person that it has a reasonable basis in law and fact. Lewis v. Barnhart, 281 F.3d 1081, 1083 (9th Cir. 2005). However, a holding that an agency decision was unsupported by substantial evidence is a strong indication that the government's position was not substantially justified. Thangaraja v. Gonzalez, 428 F.3d 870, 874 (9th Cir. 2005). It is only the decidedly unusual case in which substantial justification is found even though the agency's decision was reversed as lacking in reasonable, substantial, and probative evidence in the record. Id.
Finding the Commissioner's position to be "substantially justified" normally requires an inquiry into whether the Commissioner's conduct was "justified in substance or in the main" - that is, justified to a degree that could satisfy a reasonable person and supported by a reasonable basis both in law and fact. Gutierrez, 274 F.3d at 1258 (internal quotations and citations omitted). "When the government's legal position clearly offends established precedent... its position cannot be said to be substantially justified." Washington v. Heckler, 756 F.2d 959, 962 (3d Cir. 1985). The court focuses on two questions: "first, whether the government was substantially justified in taking its original action; and, second, whether the government was substantially justified in defending the validity of the action in court." Kali v. Bowen, 854 F.2d 329, 332 (9th Cir. 1988).
There is no dispute that plaintiff is a prevailing party for purposes of determining eligibility for EAJA fees. Therefore, the only issue remaining is whether the Commissioner's position was substantially justified, or whether special circumstances exist that make an award of attorney fees unjust.
There are no special circumstances presented that would preclude a fee award. Therefore, as noted, the government bears the burden to prove that its position was substantially justified.
In this case, plaintiff sought judicial review of a decision by the Commissioner of the Social Security Administration denying his application for disability insurance benefits (DIB) and Supplemental Security Income (SSI) benefits. The Administrative Law Judge (ALJ) found that plaintiff was not disabled as defined in the Social Security Act. Thereafter, plaintiff obtained additional information regarding his alleged disabilities including a vocational evaluation report, a psychological evaluation report, and medical records. This post-hearing evidence was submitted to the Appeals Council. The Appeals Council considered the post-hearing evidence but denied plaintiffs request for administrative review. Finding that the post-hearing evidence called into question the conclusions of ...