United States District Court, D. Oregon
OPINION & ORDER
A. Russo United States Magistrate Judge
(“plaintiff”) moves for attorney's fees
pursuant to the Equal Access to Justice Act
(“EAJA”). 28 U.S.C. §§ 2412 et.
seq.; see also (doc. 24).
Plaintiff's counsel seeks an award of fees and costs in
the amount of $14, 832.97 for 74 hours expended on
plaintiff's underlying successful Social Security
disability appeal. Pl.'s Application for Fees Under the
EAJA (doc. 24) (“Pl.'s Br.”). For
the reasons that follow, plaintiff's application is
GRANTED IN PART.
filed for disability insurance benefits (“DIB”)
under Title II of the Social Security Act (“the
Act”) on June 12, 2014. On July 7, 2016, an
Administrative Law Judge (“ALJ”) issued a
decision finding plaintiff not disabled. After exhausting his
administrative remedies, plaintiff sought judicial review in
this Court of the Social Security Commissioner's
(“Commissioner”) final decision. On April 9,
2018, plaintiff filed a 35-page opening brief arguing the ALJ
erred by: (1) rejecting her subjective symptom statements;
(2) rejecting the lay witness testimony; (3) rejecting the
medical opinion of plaintiff's treating physician; and
(4) concluding that four of plaintiff's impairments were
not severe. See (doc. 12). On July 6, 2018,
the Commissioner filed its response. (doc. 17). On
July 19, 2018, plaintiff filed a 20-page reply arguing
plaintiff was entitled to an immediate payment of benefits.
September 4, 2018, the Court issued a Findings and
Recommendation (“F&R”) reversing and
remanding the Commissioner's decision and ordering an
immediate payment of benefits. (doc. 19). No.
objections were filed to the F&R. The district judge
adopted the F&R and entered judgment on November 12,
2018. See Kenneth A. v. Berryhill, No.
3:17-cv-01575-PK, 2018 WL 5929674 (D. Or. Sep. 4, 2018),
report and recommendation adopted, 2018 WL 5928045
(D. Or. Nov. 12, 2018) (doc. 22). On December 12,
2018, plaintiff moved for attorney's fees (doc.
24) pursuant to the EAJA. Defendant opposes the award.
who prevails against the United States in a civil action is
entitled, in certain circumstances, to an award of
attorney's fees and costs pursuant to the EAJA. 28 U.S.C.
§ 2412. Under the EAJA, a court may award attorney's
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.
Perez-Arellano v. Smith, 279 F.3d 791, 792 (9th Cir.
2002); see also 28 U.S.C. § 2412(d)(1)(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, 757-58
(1980). A prevailing plaintiff is not entitled to
attorney's fees under the EAJA when the
Commissioner's positions were substantially justified.
Lewis v. Barnhart, 281 F.3d 1081, 1083 (9th Cir.
2002). An award of attorney's fees under EAJA must also
be reasonable. 28 U.S.C. § 2412(d)(2)(A).
to the EAJA, plaintiff moves for $14, 832.97 in
attorney's fees. The Commissioner does not contend that
plaintiff is not the prevailing party, that plaintiff's
hourly rates are unreasonable, or that the position of the
United States was substantially justified. The Commissioner
argues that the application for fees is premature and that
the time expended by plaintiff's counsel on the case was
unreasonable under the EAJA.
Timeliness of the Application
Commissioner argues the application should be denied as
premature. Under the EAJA, a party may file an application
for fees “within 30 days of final judgment in the
action.” 28 U.S.C. 2412(d)(1)(B). Judgment was entered
in this case on November 12, 2018. Judgment 1 (doc.
23). Barring post-judgment litigation, a judgment is not
final until 60 days after its entry. Hoa Hong Van v.
Barnhart, 483 F.3d 600, 607 (9th Cir. 2007). Plaintiff
argues the judgment became final on November 12, 2018,
because the parties waived appellate review by not objecting
to the F&R; however, the Ninth Circuit has explained that
the failure to object to an F&R does not waive the right
of appeal. See Gonzalez v. Sullivan, 914 F.2d 1197,
1200 (9th Cir. 1990). The Commissioner requests
plaintiff's motion be denied as moot or alternatively
that the Court defer ruling on the motion until the time for
appeal has run. Given that this application is fully briefed,
in the interest of judicial economy, and that the judgment
became final on January 11, 2019, the time for appeal has run
and it is now appropriate to rule on the motion.
Reasonableness of Fees
award of attorney's fees pursuant to the EAJA must be
reasonable. 28 U.S.C. § 2412(d)(2)(A); see also
Costa v. Comm'r of Soc. Sec. Admin., 690 F.3d 1132,
1135 (9th Cir. 2012). A district court has an independent
duty to review the fee request to determine reasonableness.
Hensley v. Eckerhart, 461 U.S. 424, 433 (1983);
Moreno v. City of Sacramento, 534 F.3d 1106, 1111
(9th Cir. 2008); Gates v. Deukmejian, 987 F.2d 1392,
1397 (9th Cir. 1992). In deciding fee petitions, a court must
determine the reasonable number of hours expended by counsel,
and counsel's reasonable hourly rate. Hensley,
461 U.S. at 434. The fee applicant bears the burden of
documenting the hours expended and must submit evidence in
support of the hours worked. Gates, 987 F.2d at
1397. The opposing party then has the burden of rebuttal
which requires submission of evidence to challenge the
accuracy and reasonableness of the hours charged.
Id. at 1397-98. Where documentation is inadequate,
the court may reduce the requested award. Hensley,
461 U.S. at 433.
may not apply a de facto cap on the number of hours
for which an attorney can be compensated under EAJA in Social
Security disability appeals. Costa, 690 F.3d at
1136. In other words, Social Security appeals must be
considered on an individual basis. Id. A critical
factor in evaluating the reasonableness of the EAJA request
is the “degree of success attained.” Id.
Although deference should generally be given to the winning
lawyer's professional judgment, “a district court
can impose a reduction of up to 10 percent - a
‘haircut' - based purely on the exercise of its
discretion and without more specific explanation.”
Costa, 690 F.3d at 1136 (quoting M ...