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Kenneth A. v. Berryhill

United States District Court, D. Oregon

January 30, 2019

KENNETH A., Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          OPINION & ORDER

          Jolie A. Russo United States Magistrate Judge

         Kenneth A.[1] (“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.


         Plaintiff 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. (doc. 18).

         On 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.


         A party 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).

         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).


         Pursuant 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.

         I. Timeliness of the Application

          The 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.

         II. Reasonableness of Fees

          An 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.

         A court 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 ...

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