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Ruben Tena v. Michael J. Astrue

May 25, 2012


The opinion of the court was delivered by: Honorable John F. Walter United States District Judge



On October 7, 2010, plaintiff Ruben Tena filed a complaint in this Court against defendant Michael J. Astrue, seeking a review of a denial of Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI"). Plaintiff contended the Administrative Law Judge ("ALJ") erred in five different respects. This Court entered Judgment in plaintiff's favor on January 20, 2012, reversing the decision of the Commissioner denying plaintiff benefits, and remanding the matter for further administrative proceedings pursuant to sentence four of 42 U.S.C. § 405(g). The Court rejected most of plaintiff's arguments, but found that the ALJ erred in failing to obtain an explanation or evidence to justify the Vocational Expert's ("VE") deviation from the Dictionary of Occupational Titles ("DOT"), and therefore the ALJ failed to meet the Commissioner's step five burden to demonstrate that plaintiff can perform other jobs that exist in the regional and national economy.

On March 7, 2012, plaintiff Ruben Tena filed a Motion for Attorney's Fees and Costs Pursuant to the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412(d) ("Motion"). Plaintiff is seeking a fee award in the amount of $8,453.74 based on 46.7 hours of attorney time at rates of between $180.59 and $184.16 per hour, including the time counsel spent working on the Reply brief in support of this Motion.

On April 20, 2012, defendant filed an Opposition to the Motion. Defendant contends that plaintiff is not entitled to recover any EAJA fees because the Commissioner was substantially justified in his position. Defendant further contends that, if the Court determines EAJA fees are appropriate, the fees sought should be reduced based on the limited nature of plaintiff's success on the claims he asserted, and because the hours claimed for work done by two attorneys are duplicative.

The Court finds that the Commissioner was not substantially justified in one of his positions, and therefore EAJA fees are appropriate. But the fees sought by plaintiff are not reasonable under the circumstances. Hence, for the reasons set forth below, the Court awards EAJA fees of $6,439.40.


A. Legal Standard

The EAJA provides in pertinent part:

Except as otherwise specifically provided by statute, a court shall award to a prevailing party other than the United States fees and other expenses . . . incurred by that party in any civil action (other than cases sounding in tort), including proceedings for judicial review of agency action, brought by or against the United States in any court having jurisdiction of that action, unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust.

28 U.S.C. § 2412(d)(1)(A). Thus, to award attorney's fees under the EAJA, the Court must determine that: (1) the claimant was the prevailing party; (2) the government has failed to show that its position was "substantially justified" or that special circumstances make the award unjust; and (3) the requested fees and costs are reasonable. 28 U.S.C. §§ 2412(d)(1)(A), 2412(d)(2)(A).

There is no dispute here that plaintiff was the prevailing party. But the Commissioner contends that his position was substantially justified, and also challenges the reasonableness of the fees sought.

B. The Government Has Failed to Show That Its Position Was Substantially Justified In opposing an award of EAJA fees, "[t]he government has the burden of proving its positions were substantially justified." Hardisty v. Astrue, 592 F.3d 1072, 1076 n.2 (9th Cir. 2010) (citing Flores v. Shalala, 49 F.3d 562, 569 (9th Cir. 1995)). "Substantially justified" means "'justified in substance or in the main' -- that is, justified to a degree that could satisfy a reasonable person." Pierce v. Underwood, 487 U.S. 552, 565, 108 S. Ct. 2541, 101 L. Ed. 2d 490 (1988); accord Le v. Astrue, 529 F.3d 1200, 1201 (9th Cir. 2008); Lewis v. Barnhart, 281 F.3d 1081, 1083 (9th Cir. 2002). In other words, the government's position must have had a "reasonable basis in both law and fact." Pierce, 487 U.S. at 565 (internal quotation marks and citations omitted); accord Shafer v. Astrue, 518 F.3d 1067, 1071 (9th Cir. 2008).

Where, as here, the ALJ's decision was reversed on the basis of procedural errors, the question is not whether the government's position as to the merits of [the claimant's] disability claim was substantially justified. Rather, the relevant question is whether the government's decision to defend on ...

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