United States District Court, D. Oregon
MELODY F. ANDERSON, Plaintiff,
CAROLYN W. COLVIN, Commissioner of Social Security Defendant.
Stolzberg, Attorney for Plaintiff.
J. Williams, United States Attorney, and Janice E.
Hébert, Assistant United States Attorney, United
States Attorney's Office, Michael Howard, Special
Assistant United States Attorney, Office of the General
Counsel, Social Security Administration Attorneys for
OPINION AND ORDER
Michael H. Simon United States District Judge.
moves for attorney fees under the Equal Access to Justice Act
(“EAJA”), 28 U.S.C. § 2412.
Defendant objects, arguing that her position was
substantially justified and thus EAJA fees are not warranted.
For the reasons discussed below, the Court grants
Plaintiff's motion and awards EAJA fees in the amount of
EAJA authorizes the payment of attorney's fees to a
prevailing party in an action against the United States,
unless the government shows that its position in the
underlying litigation “was substantially
justified.” 28 U.S.C. § 2412(d)(1)(A). Although
EAJA creates a presumption that fees will be awarded to a
prevailing party, Congress did not intend fee shifting to be
mandatory. Flores v. Shalala, 49 F.3d 562, 567 (9th
Cir. 1995). The decision to deny EAJA attorney's fees is
within the discretion of the court. Id.; Lewis
v. Barnhart, 281 F.3d 1081, 1083 (9th Cir. 2002). A
social security claimant is the “prevailing
party” following a sentence-four remand pursuant to 42
U.S.C. § 405(g) either for further administrative
proceedings or for the payment of benefits. Flores,
49 F.3d at 567-68 (citing Shalala v. Schaefer, 509
U.S. 292, 300 (1993)). Fee awards under the EAJA are paid to
the litigant, and not the litigant's attorney, unless the
litigant has assigned his or her rights to counsel to receive
the fee award. Astrue v. Ratliff, 560 U.S. 586,
applies a reasonableness standard in determining whether the
government's position was substantially justified.
Flores, 49 F.3d at 569. “The government has
the burden of proving its positions were substantially
justified.” Hardisty v. Astrue, 592 F.3d 1072,
1076 n.2 (9th Cir. 2010). It must demonstrate that its
position had a reasonable basis in both law and fact.
Flores, 49 F.3d at 569-70. The reasonableness
standard is met if the government's position is
“justified in substance or in the main” or
“to a degree that could satisfy a reasonable
person.” Gutierrez v. Barnhart, 274 F.3d 1255,
1258 (9th Cir. 2001) (quotations and citation omitted);
Lewis, 281 F.3d at 1083. The government must justify
both the original agency action and its litigation position.
Gutierrez, 274 F.3d at 1259.
government's failure to prevail in its position on the
underlying issues is not dispositive of the issue of whether
the government's position was “substantially
justified.” See, e.g., Pierce v.
Underwood, 487 U.S. 552, 569 (1988) (“Conceivably,
the Government could take a position that is not
substantially justified, yet win; even more likely, it could
take a position that is substantially justified, yet
lose.”). A district court's reversal of the
ALJ's decision, however, is a strong indication that the
government's defense of that decision was not
substantially justified. See Thangaraja v. Gonzales,
428 F.3d 870, 874 (9th Cir. 2005) (“Our holding that
the agency's decision of [this] case was unsupported by
substantial evidence is therefore a strong indication that
the position of the United States in this matter was not
substantially justified. Indeed, it will be only a decidedly
unusual case in which there is substantial justification
under the EAJA even though the agency's decision was
reversed as lacking in reasonable, substantial and probative
evidence in the record.”) (internal quotations
the EAJA, if the government's position is not
substantially justified, the court has discretion to
determine whether the requested fees are reasonable. See
Comm'r, INS v. Jean, 496 U.S. 154, 160-61 (1990)
(the court has similar discretion under the EAJA to determine
the reasonableness of fees as it does under the Fees Act as
described in Hensley v. Eckerhart, 461 U.S. 424,
436-37 (1983)); Atkins v. Apfel, 154 F.3d 986, 989
(9th Cir. 1998) (discussing the Jean clarification
that the Hensley analysis applies to EAJA cases).
One factor a court must consider in this analysis is the
results obtained. See Atkins, 154 F.3d at 989 (the
results obtained factor of the Hensley fee analysis
applies to cases under the EAJA). The Ninth Circuit has
cautioned that district courts may not reduce requested fees
in social security disability appeals without providing
relatively specific reasons. Costa v. Comm'r Soc.
Sec. Admin., 690 F.3d 1132, 1136- 37 (9th Cir. 2012).
seeks attorney's fees in the amount of $9, 253.27, which
represents 46.2 hours of attorney time and 3.2 hours of
paralegal time litigating the merits of Plaintiff's
appeal of the ALJ's decision and preparing the fee award
application. The Commissioner argues that the Court should
decline to award fees because the government's position
was substantially justified. The Commissioner states:
“The Court should therefore deny Plaintiff's fee
petition because the government was substantially justified.
Even if the Court disagreed, the Commissioner had a
reasonable basis for its defense of the ALJ's
decision.” ECF 27 at 4.
appears that the Commissioner is focusing her argument on
whether her litigation decision was substantially justified.
Even assuming that is true, the question remains whether the
Commissioner's underlying decision on which this case was
remanded (the ALJ's rejection of Dr. Carter's
opinion) was substantially justified. As the Ninth Circuit
The government points out that its litigation
position was substantially justified because it
reasonably argued in the district court that the ALJ's
error was harmless under Molina v. Astrue, 674 F.3d
1104, 1122 (9th Cir. 2012). To avoid an award of EAJA fees,
however, the government must show that its position was
substantially justified at each stage of the proceedings.
See Meier, 727 F.3d at 872; Li, 505 F.3d at
919 (“[W]e have consistently held that regardless of
the government's conduct in the federal court
proceedings, unreasonable agency action at any level entitles
the litigant to EAJA fees.”). Because the
government's underlying position was not
substantially justified, we award fees, even if the
government's litigation position may have been
The district court concluded that the government's
position was substantially justified because, “[w]hile
Plaintiff prevailed on the issue of lay witness testimony,
the remainder of the ALJ's conclusions were
affirmed.” This rationale conflicts with our case law,
which requires us to award fees when “the
Secretary's position on the . . . issues that led to
remand was not ...