United States District Court, D. Oregon
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
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 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
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.”)
(quotation marks omitted).
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 $6, 484.23. The
Commissioner argues that the Court should decline to award
fees because the government's position was substantially
justified. The Commissioner's entire argument is one
paragraph. The Commissioner summarily states that although
the Court found Plaintiff's sheltered work rendered the
ALJ's RFC finding unsupported by substantial evidence, a
reasonable person could have reached a different conclusion.
The Commissioner notes that whether past relevant work was
sheltered does not necessarily implicate the RFC, and that,
to the contrary, it is the RFC that directs a finding as to
whether a claimant can perform past relevant work. Thus, the
Commissioner concludes that the ALJ's position was
Commissioner had previously found Plaintiff was not disabled
and Plaintiff appealed to this Court. The Court remanded,
after holding that that the evidence showed that
Plaintiff's previous work position equated to a sheltered
work environment. On remand, the second ALJ ignored the
Court's finding regarding Plaintiff's previous work
position and adopted in full the first ALJ's RFC and
relevant discussion, including the discussion regarding
Plaintiff's previous work experience and how that work
experience rendered Plaintiff capable of performing at the
level prescribed in the RFC. The second ALJ found Plaintiff
not disabled. The Commissioner conceded that the second ALJ
erred by disregarding the Court's finding of a sheltered
work environment, but argued that the error was harmless
because nonetheless the RFC was supported by substantial
evidence in the record. The Court disagreed, reversed, and
remanded for a finding of disability and award of benefits.
second RFC was defective not simply because Plaintiff's
past relevant work was sheltered. The RFC was defective
because Plaintiff was not capable of performing at the level
articulated in the RFC, as evidenced in the record,
particularly through the sheltered nature of Plaintiff's
past relevant work. Thus, substantial evidence in the record
did not support the ALJ's RFC finding. Accordingly, the
Commissioner's position was not substantially justified,
despite the Commissioner's summary statement otherwise.
This is not a “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.”
Thangaraja, 428 F.3d at 874. Therefore, Plaintiff is
entitled to EAJA fees.
Commissioner does not challenge the reasonableness of
Plaintiff's fee request. The Court has considered the
request and finds it to be reasonable.
application for attorney's fees (ECF 25) is GRANTED.
Plaintiff is awarded $6, 484.23 for attorney's fees under
28 U.S.C. § 2412. EAJA fees are subject to any offsets
allowed under the Treasury Offset Program, as discussed in
Ratliff, 560 U.S. at 593-94. Because Plaintiff has
filed with the Court an assignment of EAJA fees to counsel,
if Plaintiff has no debt subject to the Treasury Offset
Program, then Defendant shall cause the check to be made
payable to Plaintiff's attorney and mailed to
Plaintiff's attorney at 1336 E. Burnside St., Suite 130,
Portland, OR 97132. If Plaintiff owes a debt ...