Darden v. Commissioner of Social Security ( 2022 )

1 2 3 4 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 5 AT TACOMA 6 PATRICK L DARDEN, Case No. C20-6098 TLF 7 Plaintiff, v. ORDER ON PLAINTIFF’S 8 CONTESTED MOTION FOR COMMISSIONER OF SOCIAL SECURITY, ATTORNEY’S FEES 9 Defendant. 10 11 This matter comes before the Court on plaintiff’s opposed motion for attorney’s 12 fees pursuant to 28 U.S.C. § 2412, the Equal Access to Justice Act (EAJA). Dkt. 22, 24. 13 For the reasons set forth below, the Court grants plaintiff’s motion for attorney’s fees 14 (Dkt. 22) with a 10 percent reduction to the requested fee award. 15 BACKGROUND 16 Plaintiff filed this action seeking review of the Commissioner’s final decision 17 denying plaintiff’s application for disability insurance benefits. Dkt. 4. This Court issued 18 an order reversing and remanding this matter for further administrative proceedings 19 pursuant to 42 U.S.C. § 405(g). Dkt. 19. 20 Plaintiff filed a motion seeking $8,316.66 in attorney fees and $6.50 in expenses. 21 Dkt. 22. Plaintiff’s attorneys have submitted an itemization of fees and expenses. Dkt. 22 22-2. According to this itemization, plaintiff’s attorneys – Eitan Yanich and Noah Yanich 23 – spent a combined 29.7 hours reviewing the file and preparing the opening brief in this 24 1 action. Dkt. 22-2. Noah Yanich spent 20.3 hours reviewing the file and drafting the 2 testimony and documentary evidence section of the opening brief, while Eitan Yanich 3 spent 9.4 hours reviewing the file, drafting, editing and filing the opening brief. Dkt. 22-2. 4 Defendant has opposed plaintiff’s motion contending the requested fee award should be 5 reduced because the number of hours expended by plaintiff’s attorneys were excessive. 6 Dkt. 24. Plaintiff has not filed a reply in support of the motion. 7 DISCUSSION 8 In any action brought by or against the United States, the EAJA states “a court 9 shall award to a prevailing party other than the United States fees and other expenses . 10 . . unless the court finds that the position of the United States was substantially justified 11 or that special circumstances make an award unjust.” 28 U.S.C. § 2412(d)(1)(A). “[T]he 12 fee applicant bears the burden of establishing entitlement to an award and documenting 13 the appropriate hours expended.” Hensley v. Eckerhart, 461 U.S. 424, 437 (1983). The 14 government has the burden of proving its positions overall were substantially justified. 15 Hardisty v. Astrue, 592 F.3d 1072, 1076 n.2 (9th Cir. 2010) (citing Flores v. Shalala, 49 16 F.3d 562, 569 (9th Cir. 1995)). 17 Further, if the government disputes the reasonableness of the fee, it “has a 18 burden of rebuttal that requires submission of evidence to the district court challenging 19 the accuracy and reasonableness of the hours charged or the facts asserted by the 20 prevailing party in its submitted affidavits.” Gates v. Deukmejian, 987 F.2d 1392, 1397- 21 98 (9th Cir. 1992) (citations omitted). The Court has an independent duty to review the 22 submitted itemized log of hours to determine the reasonableness of hours requested in 23 each case. See Hensley, 461 U.S. at 433, 436-37. 24 1 Defendant does not dispute that plaintiff is entitled to an award of fees under the 2 EAJA. Dkt. 24. Instead, defendant argues that the time expended by plaintiff’s attorney 3 is not reasonable. Dkt. 24. Specifically, defendant object to the reasonableness of the 4 29.7 hours plaintiff’s attorneys spent reviewing the file and drafting the opening brief. 5 Dkt. 24. Defendant argues plaintiff’s requested fee should be reduced by 10 percent to 6 $7,485. Dkt. 24. 7 Once the Court determines a plaintiff is entitled to a reasonable fee, “the amount 8 of the fee, of course, must be determined on the facts of each case.” Hensley, 461 U.S. 9 at 429, 433 n.7. “When the district court makes its award, it must explain how it came up 10 with the amount. The explanation need not be elaborate, but it must be comprehensible. 11 As Hensley described it, the explanation must be ‘concise but clear.’” Moreno v. City of 12 Sacramento, 534 F.3d 1106, 1111 (9th Cir. 2008) (emphasis in original, citations 13 omitted). In determining whether the hours expended were reasonable, this Court will 14 consider: (1) awards in similar cases; and (2) the novelty and difficulty of the questions 15 involved in this case. See Hensley, 461 U.S. at 429–30 n.3; Johnson v. Georgia 16 Highway Exp., Inc., 488 F.2d 714, 717–19 (5th Cir. 1974). Furthermore, “a district court 17 can impose a reduction of up to 10 percent—a ‘haircut’—based purely on the exercise 18 of its discretion and without more specific explanation.” Costa v. Comm’r of SSA, 690 19 F.3d 1132, 1136 (9th Cir. 2012) (citing Moreno v. City of Sacramento, 534 F.3d 1106, 20 1112–13 (9th Cir. 2008). 21 22 23 24 1 Based on the record before the Court, a 10 percent reduction in plaintiff’s 2 requested attorney’s fees is warranted in this action. 3 Nothing in the record indicates that the record, relevant facts, or legal issues in 4 this action were particularly complex or novel. Plaintiff’s opening brief alleges that the 5 ALJ erred in evaluating: (1) the medical opinion evidence, (2) plaintiff’s testimony, (3) 6 lay witness evidence and (4) plaintiff’s residual functional capacity. Dkt. 13. These 7 issues are routinely addressed in Social Security disability cases. Dkt. 13. 8 Based on the foregoing discussion, the Court finds that plaintiff’s requested fees 9 are not reasonable, and a 10 percent reduction is warranted. 10 11 CONCLUSION 12 For the above stated reasons, the Court grants plaintiff’s motion for attorney’s 13 fees (Dkt. 22) but with the 10% reduction, as follows: 14 Plaintiff is awarded attorney’s fees in the amount of $7,485.00 and expenses in 15 the amount of $6.50 pursuant to the EAJA subject to any offset allows as discussed in 16 Astrue v. Ratliff, 560 U.S. 586 (2010). 17 The Commissioner shall contact the Department of Treasury to determine if the 18 EAJA Award is subject to any offset. If the U.S. Department of the Treasury verifies to 19 the Office of General Counsel that plaintiff does not owe a debt, the government shall 20 honor plaintiff’s assignment of EAJA Award and pay the EAJA Award directly to Eitan 21 Yanich, plaintiff’s counsel. If there is an offset, any remainder shall be made payable to 22 plaintiff, based on the Department of the Treasury’s Offset Program and standard 23 24 1 practices, and the check shall be mailed to plaintiff’s counsel, Eitan Yanich, Law Office 2 of Eitan Yanich, PLLC, at 203 Fourth Avenue E., Suite 321, Olympia, WA 98501. 3 Dated this 16th day of June, 2022. 4 5 a 6 Theresa L. Fricke United States Magistrate Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24