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Parrish v. Commissioner Social Security Administration

United States District Court, D. Oregon

March 20, 2018

TERRY LEE PARRISH, Legal Representative for the Estate of Dana Michael Parrish, Plaintiff,

          NANCY J. MESEROW Attorney for Plaintiff

          BILLY J. WILLIAMS United States Attorney RENATA GOWIE Assistant United States Attorney, MICHAEL W. PILE Acting Regional Chief Counsel MICHAEL S. HOWARD Special Assistant United States Attorney Attorneys for Defendant


          ANNA J. BROWN United States Senior District Judge.

         This matter comes before the Court on Plaintiff Terry Lee Parrish's Motion (#27) for Fees, Costs and Expenses Pursuant to Equal Access to Justice Act (EAJA). In his Motion Plaintiff seeks $13, 996.89 in attorneys' fees and $20.00 in costs and expenses. Defendant opposes Plaintiff's Motion on the basis that the amount of attorneys' fees sought is unreasonable. Defendant does not oppose Plaintiff's request for $20.00 in costs and expenses.

         On this record the Court AWARDS attorneys' fees to Plaintiff in the amount of $11, 296.19 and costs and expenses in the amount of $20.00.


         Under EAJA the Court may award attorneys' fees and costs to a plaintiff's attorney in an action against the United States or any agency or official of the United States if

(1) the plaintiff is the prevailing party, (2) the government has not met its burden to show that its positions were substantially justified or that special circumstances make an award unjust, and (3) the requested attorney's fees and costs are reasonable.

28 U.S.C. § 2412(d)(1)(A). See also Perez-Arellano v. Smith, 279 F.3d 791, 792 (9th Cir. 2002).

         A “prevailing party” is one who has been awarded relief by the court on the merits of at least some of his claims. Hanrahan v. Hampton, 446 U.S. 754, 758 (1980). “Enforceable judgments and court-ordered consent decrees create ‘the material alteration of the legal relationship of the parties' necessary to permit an award of attorney's fees.” Buckhannon Bd. and Care Home, Inc. v. W.Va. Dep't of Health and Human Res., 532 U.S. 598, 604 (2001)(internal citation omitted).

         A prevailing plaintiff is not entitled to attorneys' fees under EAJA when the Commissioner's positions were substantially justified. Lewis v. Barnhart, 281 F.3d 1081, 1083 (9th Cir. 2002). The Commissioner's positions are substantially justified if they are reasonably based in both law and fact. Id. (citing Pierce v. Underwood, 487 U.S. 552, 566 n.2 (1988)). The Commissioner's failure to prevail on the merits of his positions does not raise a presumption of unreasonableness. U.S. v. Marolf, 277 F.3d 1156, 1162 (9th Cir. 2002)(citing Kali v. Bowen, 854 F.2d 329, 332 (9th Cir. 1988)).

         Under EAJA the hourly rate for attorneys' fees is capped at $125.00, but the statute allows the Court to make adjustments for cost of living or other appropriate “special factor[s].” 28 U.S.C. § 2412(d)(2)(A). If the government acts in bad faith, however, fees may be awarded at the market rate rather than at the EAJA-mandated rate. 28 U.S.C. § 2412(b), (c). See also Brown v. Sullivan, 916 F.2d 492, 497 (9th Cir. 1990)(“The district court may award attorney fees at market rates for the entire course of litigation . . . if it finds that the fees incurred during the various phases of litigation are in some way traceable to the Secretary's bad faith.”). The “bad faith exception is ‘a narrow one, ' typically invoked in cases of 'vexatious, wanton, or oppressive conduct.'” Id. at 495 (quoting Barry v. Bowen, 825 F.2d 1324, 1334 (9th Cir. 1987) and citing F.D. Rich Co. v. United States ex rel. Indus. Lumber Co., 417 U.S. 116 (1979)). The bad-faith exception “is punitive, and the penalty can be imposed ‘only in exceptional cases and for dominating reasons of justice.'” Beaudry Motor Co. v. Abko Prop. Inc., 780 F.2d 751, 756 (9th Cir. 1986)(quoting United States v. Standard Oil Co., 603 F.2d 100, 103 (9th Cir. 1979)).

         The court may reduce an award of attorneys' fees under EAJA when the plaintiff's requested fees are unreasonable. Costa v. Comm'r of Soc. Sec. Admin., No. 11-35245, 2012 WL 3631255, at *2 (9th Cir. Aug. 24, 2012)(citing 28 U.S.C. §§ 2412(d)(1)(A), 2412(d)(2)(A)). The court applies the “lodestar” method set forth in Hensley v. Eckerhart to determine whether a fee award is reasonable. Id. (citing 461 U.S. 424, 433 (1983)). See also Comm'r, INS v. Jean, 496 U.S. 154, 161 (1990)(Under EAJA “the district court's task of determining what fee is reasonable is essentially the same as that described in Hensley.”).

         To calculate the “lodestar” amount, the court multiplies “the number of hours reasonably expended on the litigation . . . by a reasonable hourly rate.” Costa, 2012 WL 3631255, at *2 (quoting Hensley, 461 U.S. at 433). To calculate the number of hours reasonably expended, the court considers “whether, in light of the ...

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