United States District Court, D. Oregon
SHAUN P. RAYBORN, Plaintiff,
COMMISSIONER, Social Security Administration, Defendant.
Stolzberg Attorney for Plaintiff.
J. Williams UNITED STATES ATTORNEY District of Oregon Janice
E. Hebert ASSISTANT UNITED STATES ATTORNEY, Lars J. Nelson
SPECIAL ASSISTANT UNITED STATES ATTORNEY Office of the
General Counsel Social Security Administration Attorneys for
OPINION & ORDER
A. HERNANDEZ, UNITED STATES DISTRICT JUDGE
Shaun Rayborn brought this action seeking review of the
Commissioner's decision to deny his applications for
disability insurance benefits (DIB) and supplemental security
income (SSI). In a September 30, 2016 Opinion & Order, I
reversed the Commissioner's decision, concluding that the
Administrative Law Judge (ALJ) had denied Plaintiff due
process at the January 2014 administrative hearing. I ordered
that the case be remanded for a de novo hearing.
Judgment was entered on September 30, 2016, and an Amended
Judgment was filed October 4, 2016.
now seeks an award of fees pursuant to the Equal Access to
Justice Act, 28 U.S.C. § 2412 (EAJA). Defendant opposes
the motion, arguing that the Commissioner's decision was
substantially justified. Defendant also argues that
Plaintiffs fee request is unreasonable. For the reasons
explained below, I agree with Plaintiff on the substantial
justification issue. Because I also conclude that the hours
requested are reasonable, I award Plaintiff $12, 338.39 in
fees. I. Substantially Justified.
requires an award of attorney's fees to prevailing
parties in civil actions against the United States unless the
position of the United States was substantially justified. 28
U.S.C. § 2412(d)(1)(A). There is no dispute that
Plaintiff was the prevailing party.
burden is on the Commissioner to show that Defendant's
position was substantially justified. Meier v.
Colvin, 727 F.3d 867, 870 (9th Cir. 2013). Although
"Congress did not intend fee shifting [under EAJA] to be
mandatory[, ]" "EAJA creates a presumption that
fees will be awarded to prevailing parties." Flores
v. Shalala, 49 F.3d 562, 567 (9th Cir. 1995). However,
the "government's failure to prevail does not raise
a presumption that its position was not substantially
justified." Kali v. Bowen, 854 F.2d 329, 332
(9th Cir 1988). To establish that its position was
substantially justified, the government must show that its
position had "a reasonable basis both in law and
fact." Pierce v. Underwood, 487 U.S. 552, 565
(1988). "Substantial justif[ication]" means
"justified in substance or in the main - that is,
justified to a degree that could satisfy a reasonable
"position of the United States includes both the
government's litigation position and the underlying
agency action giving rise to the civil action."
Tobeler v. Colvin, 749 F.3d 830, 832 (9th Cir. 2014)
(internal quotation marks omitted); see also 28 U.S.C. §
2412(d)(2)(D) (the '"position of the United
States' means, in addition to the position taken by the
United States in the civil action, the action or failure to
act by the agency upon which the civil action is
based"). "Thus, if the government's underlying
position was not substantially justified, we must award fees
and need not address whether the government's litigation
position was justified." Id. (internal
quotation marks and brackets omitted).
argues that its defense of this matter had a reasonable basis
in fact and law. Before this Court, Defendant contended that
the ALJ, in telling Plaintiffs counsel at the hearing that
further questioning would not be helpful, was exercising his
authority to control the presentation of evidence and prevent
undue repetition by witnesses. See Def's Brief
4-7, ECF 20. Defendant further contended that Plaintiffs
counsel was to blame because she voluntarily ceased
questioning in the face of the ALJ's statements that he
did not want to hear "anything" and that more
testimony would not be helpful. In opposing the EAJA fee
request, Defendant returns to the notion that Plaintiffs
counsel's discontinuation of questioning was the issue
and contends it was reasonable for Defendant to assert that
position before this Court. Because judges may express
"impatience, dissatisfaction, annoyance, and even
anger" without violating due process, Liteky v.
United States, 510 U.S. 540, 555-56 (1994), Defendant
argues that it had a reasonable basis in fact and law to
assert that Plaintiffs counsel cut off questioning and that
Plaintiff was accorded a full hearing.
makes no argument directly addressing whether the ALJ's
position, e.g., the underlying agency action giving
rise to the civil action, was substantially justified. But,
as indicated above, the position of the United States at both
the agency level and the district court level must be
substantially justified to deny an EAJA fee request.
September 30, 2016 Opinion makes clear that the ALJ's
statements at the hearing went beyond impatience,
dissatisfaction, annoyance, or anger. Sept. 30, 2016 Op.
7-10. As explained in more detail in that Opinion, the ALJ
may have initially limited his comments to those expressing
impatience or annoyance, id. at 7-8, but, the ALJ
continued and persisted in interrupting counsel by urging her
to move along. Id. Then, he finally told counsel
'"I don't want to hear anything.'"
Id. at 8 (quoting Tr. 67). The ALJ recited
everything he had already read and heard, including that
already he knew what Plaintiff "says" and the
reasons Plaintiff said he could not work. Id. He
concluded his remarks by stating '"[i]f you want to
perseverate on Mr. Rayborn's mental limitations, it's
just not going to be helpful.'" Id.
(quoting Tr. 67). I rejected Defendant's argument that
given the previous hearing in the case, the ALJ was simply
controlling the presentation of evidence. Id. at 9.
Notably, Plaintiffs prior testimony was limited to only his
work history. And, the lay witness testimony could not have
presented the ALJ with a full picture of Plaintiff s
condition because the ALJ himself rejected that testimony in
part because the witness saw Plaintiff only a couple of hours
per week. Id. Contrary to Defendant's argument,
I found that the record established that the first and only
time Plaintiff had an opportunity to discuss his impairments
was at the January 2014 hearing.
rejected Defendant's contention that the record
established that Plaintiffs counsel cut off questioning. I
explained that the ALJ's conduct placed counsel in an
untenable position. Id. at 9-10. I further noted
that in the context of social security cases, where counsel
appear repeatedly in front of the same judge, counsel face
increased pressure to follow a judge's directive.
Id. Thus, the transcript of the hearing showed that
the ALJ was responsible for terminating the questioning, not
end, the record demonstrated that the ALJ prevented Plaintiff
from continuing with testimony regarding his mental
limitations at the only hearing where such testimony was
being elicited. As a result, the ALJ violated Plaintiffs due
process rights. Defendant's position at the underlying
agency level was not substantially justified. See
Mendenhall v. Nat'l Transp. Safety Bd., 92 F.3d 871,
874 (9th Cir. 1996) ("A finding that an agency's
position was substantially justified when the agency's
position was based on violations of the Constitution, federal
statute or the agency's own regulations, constitutes an
abuse of discretion").
the Commissioner's position in the litigation here was
not based on a reasonable interpretation of the record.
Defendant argues that the record unambiguously showed that
Plaintiffs counsel terminated questioning and thus, it was
reasonable for Defendant to argue to this Court that the ALJ
was simply exercising his right to control the evidentiary
presentation. I agree with Defendant that the record was
unambiguous, but for the reasons already discussed, I
conclude that the record unambiguously established that the