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Hicks v. Saul

United States District Court, D. Oregon

October 1, 2019

ANDREW SAUL, Commissioner of Social Security, [1] Defendant.

          Nancy J. Meserow, Law Office of Nancy J. Meserow, Attorney for Plaintiff.

          Billy J. Williams, United States Attorney, and Renata Gowie, Assistant United States Attorney, United States Attorney's Office, District of Oregon, Heather L. Griffith, Special Assistant United States Attorney, Office of the General Counsel, Social Security Administration, Attorneys for Defendant.


          Karin J. Immergut United States District Judge.

         Plaintiff moves for an award of attorney's fees, expenses, and costs under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412. ECF 23. Defendant objects, arguing that the fees requested are unreasonable and should be reduced accordingly. ECF 25. For the reasons below, this Court grants Plaintiff's motion in part.


         On March 31, 2017, an administrative law judge (“ALJ”) for the Social Security Administration found that Plaintiff was not disabled during the relevant time period and denied her application for Disability Insurance Benefits and Supplemental Security Income. AR 14-28. The Appeals Council denied review of the ALJ's decision. AR 1. Plaintiff timely filed a complaint for judicial review of the Commissioner's decision. ECF 1.

         Plaintiff filed her Opening Brief on September 7, 2018. ECF 13. In its response, Defendant conceded error by the ALJ and moved to remand the case for further proceedings under sentence four of 42 U.S.C. § 405(g). ECF 16 at 2. Plaintiff argued in reply that the court should instead remand for payment of benefits under the Ninth Circuit's credit-as-true doctrine. ECF 17; see generally Garrison v. Colvin, 759 F.3d 995, 1019-21 (9th Cir. 2014) (explaining the doctrine). Because Plaintiff sought to credit the testimony of a non-medical doctor, Chief Judge Michael W. Mosman requested further briefing on whether remand for the payment of benefits was an appropriate remedy. ECF 18. After both parties provided supplemental briefing, ECF 19, 20, Judge Mosman issued an Opinion and Order on April 30, 2019, reversing the decision of the Commissioner and remanding the case for further proceedings, ECF 21. On July 2, 2019, Plaintiff filed the current motion for fees, costs, and expenses. ECF 23.


         The EAJA authorizes 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 or that special circumstances make an award unjust.” 28 U.S.C. § 2412(d)(1)(A). In social security appeals brought under 42 U.S.C. § 405(g), a claimant is the “prevailing party” following a sentence-four remand for further administrative proceedings or the payment of benefits. Flores v. Shalala, 49 F.3d 562, 568 (9th Cir. 1995) (citing Shalala v. Schaefer, 509 U.S. 292, 300-02 (1993)). 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, 49 F.3d at 567. 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. See Astrue v. Ratliff, 560 U.S. 586, 596-98 (2010).

         The baseline for an attorney's fee award is the hours reasonably worked multiplied by a reasonable hourly rate. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). After the fee applicant has submitted evidence establishing entitlement to an award, the opposing party “has a burden of rebuttal that requires submission of evidence to the district court challenging the accuracy and reasonableness of the hours charged.” Gates v. Deukmejian, 987 F.2d 1392, 1397-98 (9th Cir. 1992). Ultimately, the court has discretion to determine whether the request is reasonable. See Sorenson v. Mink, 239 F.3d 1140, 1145-46 (9th Cir. 2001). However, the Ninth Circuit has cautioned that district courts may not reduce the fees requested in social security cases without providing relatively specific reasons. Costa v. Comm'r Soc. Sec. Admin., 690 F.3d 1132, 1135- 37 (9th Cir. 2012) (per curiam). In a social security case, relevant factors in this analysis include the complexity of the legal issues, the procedural history, and the size of the record. Id. at 1136.

         In determining what fees are reasonable, the court also considers the results that the party obtained. Atkins v. Apfel, 154 F.3d 986, 989 (9th Cir. 1998). When a plaintiff succeeds on only some claims raised in the underlying lawsuit, Hensley v. Eckerhart sets out a two-step inquiry to analyze the reasonableness of the fees requested. 461 U.S. at 434; see also Comm'r, I.N.S. v. Jean, 496 U.S. 154, 160-63 (1990) (holding that this inquiry applies to attorney's fees under the EAJA). The first step is to consider whether the claims on which plaintiff did not prevail were unrelated to the claims on which the plaintiff succeeded. Hensley, 461 U.S. at 434. Hours expended on unrelated, unsuccessful claims are excluded from a reasonable fee award. Id. at 440. Claims “may be related if either the facts or the legal theories are the same.” Webb v. Sloan, 330 F.3d 1158, 1169 (9th Cir. 2003). Unrelated claims are “distinctly different claims for relief that are based on different facts and legal theories” and “distinct in all respects from [the] successful claims.” Hensley, 461 U.S. at 434, 440.

         The second step of the Hensley analysis is to consider whether the “plaintiff achieve[d] a level of success that makes the hours reasonably expended a satisfactory basis for making a fee award.” Id. at 434. The court must determine whether the plaintiff achieved “substantial relief” as opposed to “limited success.” See Id. at 440. “[A] plaintiff who has won substantial relief should not have his attorney's fee reduced simply because the district court did not adopt each contention raised.” Id. If, however, the plaintiff achieved only “limited success, ” then the court must compare the relief obtained “to the scope of the litigation as a whole” and “award only that amount of fees that is reasonable in relation to the results obtained.” Id. There is no mathematical formula for making these determinations, and it is left to the district court's discretion, exercised in line with these considerations. Id. at 436-37.


         Plaintiff seeks an award of $14, 920.42 in attorney's fees, $9.00 in postage expenses, and $6.00 in photocopying costs. ECF 23. Plaintiff has discounted this fee request relative to the hours spent on the litigation. See ECF 24 at 3-4, ¶ 7. Defendant agrees that Plaintiff, as the prevailing party, is entitled to an award of attorney's fees under the EAJA because the Commissioner's position was not substantially justified. ECF 25. Defendant does not challenge Plaintiff's hourly rate, the $9.00 in expenses, or the $6.00 in costs. Id. However, Defendant argues that the requested attorney's fees, representing a total of 74.01 ...

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