United States District Court, S.D. California
ORDER REGARDING MOTION FOR ATTORNEYS' FEES [Doc.
Cathy Ann Bencivengo United States District Judge
December 27, 2016, Magistrate Judge Jill L. Burkhardt issued
a Report and Recommendation (“Report”) to grant
Plaintiff Wafaa Aziez's motion for summary judgment and
to deny Defendant Berryhill's cross-motion for summary
judgment. [Doc. No. 19.] On January 19, 2017, this Court
issued an order adopting the Report, granting Plaintiff's
motion for summary judgment, and denying Defendant's
motion for summary judgment. [Doc. No. 20.] On April 19,
2017, Plaintiff filed a motion for attorneys' fees. [Doc.
No. 22.] On May 4, 2017, Defendant filed an opposition to the
motion. [Doc. No. 24.] On May 11, 2017, Plaintiff filed a
reply to the opposition. [Doc. No. 25.] After a careful
review of the submissions of the parties, the Court
GRANTS Plaintiff's motion for
has submitted an application for attorney's fees pursuant
to the Equal Access to Justice Act, (“EAJA”) 28
U.S.C. section 2412. Defendant opposes the motion on the
grounds that the government's position was substantially
justified and that the fees requested are unreasonable. The
Court grants plaintiff's application, as set forth below.
EAJA shifts the burden of attorney's fees from the
private litigant to the government in order to reduce the
chance that the expense of legal representation will deter
defense against unreasonable government action. Wolverton
v. Heckler, 726 F.2d 580, 582 (9th Cir.1984). “[A]
litigant is entitled to attorney's fees and costs if (1)
[s]he is the prevailing party, (2) the government fails to
show that its position was substantially justified or that
special circumstances make an award unjust, and (3) the
requested attorney's fees and costs are reasonable. 28
U.S.C. § 2412(d)(1)(A); Carbonell v. INS, 429
F.3d 894, 898 (9th Cir.2005) (citing Perez-Arellano v.
Smith, 279 F.3d 791, 793 (9th Cir.2002)) (further
Plaintiff is the prevailing party.
applicant for Social Security benefits who receives a remand
under sentence four of 42 U.S.C. section 405(g) is a
prevailing party, regardless of whether the applicant later
succeeds in obtaining the requested benefits. Shalala v.
Shaefar, 509 U.S. 292, 302, 113 S.Ct. 2625, 125 L.Ed.2d
239 (1993); Garnica v. Astrue, 378 Fed.Appx. 680,
681 (9th Cir. 2010). The Court remanded this action to the
ALJ pursuant to sentence four of 42 U.S.C. section 405(g).
[Doc. Nos. 19, 20.] Plaintiff is therefore a prevailing
party. See Shalala, 509 U.S. at 302.
Commissioner has not shown that her position was
government bears the burden of showing that its position was,
as a whole, substantially justified. Gutierrez v.
Barnhart, 274 F.3d 1255, 1258 (9th Cir.2001)
(“Gutierrez II ”). To meet this
standard, the government must advance a position that is
“justified in substance or in the main-that is,
justified to a degree that could satisfy a reasonable
person.” Le v. Astrue, 529 F.3d 1200, 1201
(9th Cir.2008) (citation and internal quotations omitted). In
making this determination, a court “must focus on two
questions: first, whether the government was substantially
justified in taking its original action; and, second, whether
the government was substantially justified in defending the
validity of the action in court.” Gutierrez
II, 274 F.3d at 1258-59 (quotations, citations, and
modifications omitted). The Commissioner must show that her
position was substantially justified “with respect to
the issue on which the court based its remand.”
Flores v. Shalala, 49 F.3d 562, 569 (9th Cir.1995).
It is an abuse of discretion to find “that an
agency's position was substantially justified when the
agency's position was based on violations of ... the
agency's own regulations....” Gutierrez
II, 274 F.3d at 1259- 60 (citing Mendenhall v.
NTSB, 92 F.3d 871, 874 (9th Cir.1996)).
the Commissioner's position with respect to the issues on
which the Court based its remand was not substantially
justified. This Court found the Commissioner committed the
following two errors of law and fact: (1) the ALJ did not
meet the “clear and convincing” standard to
discredit Plaintiff's testimony [Doc. No. 19 at 16]; (2)
Plaintiff presented a colorable claim of somatoform disorder
and the ALJ failed to even mention it [Doc. No. 19 at 18].
For the reasons set forth in the Report, the
Commissioner's position was not substantially justified.
[See generally, Doc. No. 19.] Moreover, given that
several errors were made by the ALJ, the government's
position is not substantially justified. See Herron v.
Colvin, 585 Fed.Appx. 511, 512-13 (9th Cir. 2014)(where
ALJ made a series of legal errors, the government's
position was not substantially justified). Finally, given
that the underlying government position was not substantially
justified, the government was also not substantially
justified in defending the previous action. See Sampson
v. Chater, 103 F.3d 918, 922 (citations omitted).
requested attorney's fees are reasonable.
counsel seeks an order awarding a total of $17, 165.50 in
attorney's fees. In the original motion, Plaintiff
requested $17, 466.07 in attorneys' fees. That amount
accounts for 12.2 hours of attorney time at the 2015 rate of
$190.28 per hour and 73.1 hours of attorney time at 2016 rate
of $192.68 per hour, plus an additional 5.5 hours ($1,
059.74) for preparation of the fees motion. [Doc. No. 22-2 at
2-3.] The Commissioner argues that the number of hours
Plaintiff's attorneys claim to have spent litigating this
action is unreasonable. Specifically, the Commissioner
asserts that the work could have been accomplished in 33.5
hours and suggests an award of $7, 482.29. [Doc. No. 24 at
18.] In reply, Plaintiff agrees to a 5.1 hour reduction for
time that is duplicative or clerical, and requests an
additional 9 hours of for preparation of the reply, for a
total of $17, 165.50 in fees. [Doc. No. 25 at 9.]
EAJA directs the court to award reasonable fees. 28 U.S.C.
§ 2412(d)(2)(A). In determining whether a fee is
reasonable, the court considers the hours expended, the
reasonable hourly rate, and the results obtained. See
Commissioner, INS v. Jean, 496 U.S. 154 (1990);
Hensley v. Eckerhart, 461 U.S. 424, 429 (1983),
abrogated on other grounds by Texas State Teachers
Ass'n v. Garland Indep. Sch. Dist., 489 U.S. 782,
(1989); Passatino v. Johnson & Johnson Consumer
Prods., Inc., 212 F.3d 493, 515 (9th Cir.2000);
Atkins v. Apfel, 154 F.3d 986 (9th Cir.1998).
the Commissioner does not dispute the reasonableness of the
rates, but rather the number of hours expended. The Court
finds that the requested rates, based upon the EAJA rate
found on ...