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Kauffman v. Berryhill

United States District Court, D. Oregon

March 27, 2018

KARI KAUFFMAN, Plaintiff,
v.
NANCY A. BERRYHILL, Commissioner of Social Security, Defendant.

          ORDER

          MICHAEL H. SIMON UNITED STATES DISTRICT JUDGE

         On May 1, 2012, Plaintiff Kari Kauffman filed a lawsuit challenging the final decision of the Commissioner of Social Security. ECF 1. United States Magistrate Judge John V. Acosta issued Findings and Recommendation on the merits of Plaintiff's case on November 4, 2013. ECF 18. On May 27, 2014, the Court issued an Amended Opinion and Order adopting Judge Acosta's Findings and Recommendation and affirming the Commissioner's decision. ECF 23. On appeal, the Ninth Circuit Court of Appeals reversed and remanded the Court's decision. ECF 27. Pursuant to the Ninth Circuit's mandate, the Court vacated its May 7, 2014 judgment, reversed the decision of the Commissioner, and remanded the action to the Commissioner for further proceedings. ECF 29. On August 9, 2017, Plaintiff moved for fees pursuant to the Equal Access to Justice Act (“EAJA”). ECF 30. The government opposed. ECF 33. On February 1, 2018, Judge Acosta issued a Findings and Recommendation, recommending that the Court deny Plaintiff's motion for fees. ECF 35. The Court declines to adopt Judge Acosta's Findings and Recommendation, and grants Plaintiff's motion for EAJA fees.

         STANDARDS

         A. The Findings & Recommendation

         Under the Federal Magistrates Act (“Act”), the Court may “accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate.” 28 U.S.C. § 636(b)(1). If a party files objections to a magistrate's findings and recommendations, “the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” Id.; Fed.R.Civ.P. 72(b)(3).

         For those portions of a magistrate's findings and recommendations to which neither party has objected, the Act does not prescribe any standard of review. See Thomas v. Arn, 474 U.S. 140, 152 (1985) (“There is no indication that Congress, in enacting [the Act], intended to require a district judge to review a magistrate's report to which no objections are filed.”); United States. v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (holding that the court must review de novo magistrate's findings and recommendations if objection is made, “but not otherwise”). Although in the absence of objections no review is required, the Act “does not preclude further review by the district judge[] sua sponte . . . under a de novo or any other standard.” Thomas, 474 U.S. at 154. Indeed, the Advisory Committee Notes to Fed.R.Civ.P. 72(b) recommend that “[w]hen no timely objection is filed, ” the Court review the magistrate's recommendations for “clear error on the face of the record.” Kauffman timely filed an objection (ECF 37), to which the Commissioner responded. ECF 38. Kauffman objects to the entirety of Judge Acosta's recommendation finding EAJA fees unwarranted. The Court, therefore, reviews Kauffman's application for fees de novo.

         B. Fees Under the Equal Access to Justice Act

         The 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 the 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, 596-98 (2010).

         A court 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 showing that its position was substantially justified.” Gardner v. Berryhill, 856 F.3d 652, 656 (9th Cir. 2017). 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) (citation and quotation marks 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.

         The 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 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.”) (quotation marks omitted).

         Under 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 Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S.C. § 1988, 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).

         DISCUSSION

         It is undisputed that Plaintiff is the prevailing party in this case. Plaintiff also alleged in her request for fees, as required, that the position of the United States was not substantially justified. See 28 U.S.C. § 2412(d)(1)(B). The Commissioner opposed Plaintiff's motion on the grounds that the government's position was substantially justified.

         It is well-settled that the government carries the burden of proving that its position was substantially justified. See, e.g., Scarborough v. Principi, 541 U.S. 401, 414 (2004); Campbell v. Astrue, 736 F.3d 867, 868 (9th Cir. 2013); Sianian v. Apfel, 202 F.3d 279 (9th Cir. 1999) (“The denial of attorneys' fees to the prevailing party where the government has failed to meet its burden of establishing substantial justification for its position at each stage in the proceedings is an abuse of discretion.”). Here, the government puts forward little argument or discussion to support its assertion that its position was substantially justified. The government provides the following justifications: first, that the Ninth Circuit has never stated that a claimant should be awarded attorney's fees every time the Ninth Circuit reverses and remands an ALJ's decision for lack of substantial evidence, and that the fact that a claimant prevails on the merits does not raise a presumption that the government's position was not substantially justified. Second, the government argues that the Court must assess the justification of the Commissioner's position based on its reasonableness before the Ninth Circuit's remand of the case. Third, the government argues that the Court may consider the Commissioner's initial success in the district court as evidence that the Commissioner's position was substantially justified, and that because Judge Acosta and the Court affirmed the ...


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