United States District Court, C.D. California
ORDER GRANTING MOTION FOR ATTORNEY FEES UNDER EQUAL
ACCESS TO JUSTICE ACT
CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE
21, 2017, counsel for Plaintiff filed a “Motion for
Award of Attorney's Fees Pursuant to Equal Access to
Justice Act, etc.” (the “Motion”).
Defendant did not file any timely opposition to the Motion.
See Minute Order dated June 21, 2017. The Motion
seeks an award of $4, 600 to be paid directly to
August 31, 2016, Plaintiff filed a complaint seeking review
of the Commissioner's denial of disability benefits. The
parties consented to a Magistrate Judge on October 24, 2016.
After reviewing the parties' cross-motions for summary
judgment, the Court remanded the matter for further
administrative proceedings. See “Memorandum
Opinion and Order of Remand, ” filed March 23, 2017.
Equal Access to Justice Act (“EAJA”) provides:
Except as otherwise specifically provided by statute, a court
shall award to a prevailing party other than the United
States fees and other expenses, in addition to any costs
awarded . . ., incurred by that party in any civil action . .
., including proceedings for judicial review of an agency
action, brought by or against the United States . . .
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) (emphasis added).
“[F]ees and other expenses” include
“reasonable attorney fees.” 28 U.S.C. §
is the government's burden to show that its position was
substantially justified or that special circumstances exist
to make the award unjust.” Gutierrez v.
Barnhart, 274 F.3d 1255, 1258 (9th Cir. 2001).
“‘Substantially justified' means
“‘justified in substance or in the main' -
that is, justified to a degree that could satisfy a
reasonable person.” Id. (quoting Pierce v.
Underwood, 487 U.S. 552, 565 (1988)). In other words,
where “reasonable people could differ as to the
appropriateness of the contested action, ” the
Government's position is substantially justified.
Pierce v. Underwood, 487 U.S. at 565 (internal
brackets, quotations and citations omitted). Substantial
justification requires that the Government's position
have a “reasonable basis both in law and in
fact.” Id. at 565-66; see also
Commissioner, I.N.S. v. Jean, 496 U.S. 154, 158 n.6
(1990); Thangaraja v. Gonzales, 428 F.3d 870, 874
(9th Cir. 2005) (substantial justification is equated with
viewing the conduct of the Government, “the remedial
purpose of the EAJA is best served by considering the
totality of the circumstances.” United States v.
Gavilan Joint Community College Dist., 849 F.2d 1246,
1248 (9th Cir. 1988) (citation omitted). The Court must
examine both the Government's pre-litigation and
litigation positions. Id.; see Corbin v.
Apfel, 149 F.3d 1051, 1052 (9th Cir. 1998) (“The
government's position must be ‘substantially
justified' at each stage of the proceedings.”)
(quotations and citation omitted). In the Social Security
context, the Government's position includes “both
the government's litigation position and the underlying
agency action giving rise to the civil action.”
Meier v. Colvin, 727 F.3d 867, 870-72 (9th Cir.
2013); see also 28 U.S.C. § 2412(d)(2)(D)
(“‘position of the United States' means, in
addition to the position taken by the United States in the
civil action, the action or failure to act by the agency upon
which the civil action is based . . .”). In evaluating
the reasonableness of the Government's position, the
Court must “focus on the remand issue[s] rather than
the ultimate disability determination.” Lewis v.
Barnhart, 281 F.3d 1081, 1086 (9th Cir. 2002). When the
ALJ's decision is the final decision of the
Administration, the ALJ's decision is the “action
or failure to act by the agency upon which the civil action
is based.” Meier v. Colvin, 727 F.3d at
870-72. In this circumstance, the ALJ's decision is the
decision reviewed for substantial justification. Id.
reasons set forth in the “Memorandum Opinion and Order
of Remand, ” filed March 23, 2017, the Government's
position was not substantially justified. No special
circumstances would make an award unjust. The fees sought are
fee award generally is payable to the prevailing litigant
rather than to the prevailing litigant's counsel. See
Astrue v. Ratliff, 560 U.S. 586, 596-97 (2010). However,
Plaintiff assigned his EAJA fees to his counsel. See
“Plaintiff's Affidavit and Assignment of EAJA Fee,
” appended to the Motion. If Plaintiff does not owe a
government debt that qualifies for an offset, payment may be
made in the name of Plaintiff's counsel when the
Government waives the Anti-Assignment Act, 31 U.S.C. section
3727. See United States v. Kim, 806 F.3d 1161,
1169-70 (9th Cir. 2015) (to the extent the ...