Opinion
Civil No. 97-6251-JO
March, 2001
Ralph Wilborn RALPH WILBORN ETTA L. WILBORN Tucson, AZ., Attorney for Plaintiff.
William W. Youngman Assistant United States Attorney, District of Oregon UNITED STATES ATTORNEY'S OFFICE Portland, OR., Lucille G. Meis SOCIAL SECURITY ADMINISTRATION Office of General Counsel Seattle, WA., Attorneys for Defendant.
OPINION AND ORDER
This case is before the court on claimant Halray Harman's motion and application for attorney fees and expenses (## 31, 32) pursuant to the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412 et seq. As explained below, claimant's application is allowed in part and denied in part.
BACKGROUND
On May 7, 1998, this court entered a judgment reversing the decision of the Commissioner of the Social Security Administration denying claimant's applications for benefits and remanding the case for further administrative proceedings. On May 13, 1998, claimant filed a motion to alter or amend judgment, arguing that this court must remand for an award of benefits, not further proceedings. On July 7, 1998, the court denied that motion.
Claimant then filed an appeal from the judgment to the United States Court of Appeals for the Ninth Circuit. On February 17, 2000, the Ninth Circuit affirmed, ruling, among other things, that this court did not abuse its discretion in remanding the case for further administrative proceedings. Harman v. Apfel, 203 F.3d 1151 (9th Cir. 2000). Claimant then filed a petition for rehearing en banc. On May 4, 2000, the Ninth Circuit denied that petition, but issued an amended opinion clarifying one paragraph of its earlier decision. Harman v. Apfel, 211 F.3d 1172 (9th Cir. 2000).
Claimant next petitioned for a writ of certiorari with the United States Supreme Court. By order dated December 4, 2000, that petition was denied. On January 3, 2001, claimant filed the present application for attorney fees and expenses.
THE PARTIES' CONTENTIONS
Claimant requests the sum of $28,391.48 in attorney fees for work performed in the district court and the appellate court, and the sum of $1,500.39 in expenses. The Commissioner does not dispute that claimant was the prevailing party and is entitled to recover attorney fees under the EAJA for work done in the district court up through this court's judgment, and does not contest the claimed hourly fee of $139.77 per hour. The Commissioner does, however, object to claimant's request for fees for the motion to alter or amend judgment, the appeal, and the petition for rehearing en banc. Claimant, in turn, justifies his request for attorney fees related to the appeal on the basis that, although the Ninth Circuit affirmed the decision of this court, he nonetheless "achieved a substantial victory which significantly altered the nature of the remand proceedings ordered by this Court." Plaintiff's Reply, p. 4.
DISCUSSION
Under the EAJA, a "prevailing party" is entitled to attorney fees "incurred by that party in any civil action * * * brought * * * against the United States * * * unless the court finds that the position of the United States was substantially justified * * *." 28 U.S.C. § 2412(d)(1)(A). "Substantially justified" has been interpreted to mean "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 (1988). The government's position may be substantially justified even though it loses on the merits. Underwood, 487 U.S. at 569.
The burden is on the government to establish that its position was substantially justified in law and in fact. See, e.g., Bullfrog Films, Inc. v. Wick, 959 F.2d 782, 784 (9th Cir. 1992). Whether the government's position was substantially justified is to be determined by the court on the basis of the record "which is made in the civil action for which fees and other expenses are sought." 28 U.S.C. § 2412(d)(1)(B).
In this case, it is undisputed that claimant is a prevailing party and that the position of the Commissioner was not substantially justified. Although the Commissioner seems to suggest that these two elements of eligibility — "prevailing party" and "substantial justification" — are subject to evaluation at multiple stages of the litigation, the Supreme Court and the Ninth Circuit have clarified that the determination of both "prevailing party" and "substantial justification" are one-time thresholds for EAJA fee eligibility. See Commissioner, Immigration and Naturalization Service v. Jean, 496 U.S. 154, 160-61 (1990) (citing Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)); Atkins v. Apfel, 154 F.3d 986, 989 (9th Cir. 1998).
However, that claimant is eligible to recover all of his attorney fees "only gets him `across the statutory threshold' * * * it does not automatically result in an award." Atkins, 154 F.3d at 989 (citing Jean, 496 U.S. at 160). Instead, this court must decide what fee is reasonable, considering, in particular, "`the relationship between the amount of the fee awarded and the results obtained.'" Atkins 154 F.3d at 989 (quoting Hensley, 461 U.S. at 437). The Ninth Circuit has made it clear, for example, that this court must disallow attorney fees and expenses for time spent pursuing an appeal "which results in no further benefit." Atkins, 154 F.3d at 988.
With those legal guidelines in mind, I examine the disputed portions of claimant's request.
1. Fees Associated with Claimant's Motion to Alter or Amend Judgment
Claimant incurred 6.35 hours of attorney time ($887.54) pursuing his unsuccessful motion to alter or amend this court's judgment. The Commissioner objects to this amount, arguing that claimant made no new arguments in the motion and achieved no benefit whatsoever. I agree with the Commissioner, and note that claimant's submissions fail to offer any justification as to why an award of these attorney fees would be reasonable. Consequently, this portion of claimant's request is denied.
2. Fees Associated with the Ninth Circuit Appeal
It appears from claimant's time records that, not including time spent on the petition for rehearing (discussed below), he incurred 101.24 hours in attorney time ($14,150.31) pursuing the Ninth Circuit appeal. The Commissioner objects to this portion of claimant's fee request, arguing that the appeal did not advance claimant's position in any respect.
The Ninth Circuit did, indeed, affirm this court's decision to remand for further proceedings rather than for an award of benefits. In doing so, however, the appellate court also ruled that on remand, the Commissioner was not to reevaluate Dr. Fox's opinions in light of all the medical evidence of record (as this court had ordered), but instead must credit Dr. Fox's opinions as true. Presumably, as claimant contends, that ruling changed the nature of the remand proceedings, to claimant's benefit. In this respect, the present case is distinguishable from Atkins v. Apfel, 46 F. Supp.2d 1066 (D.Or. 1999), where on remand, the court determined that the additional sums claimant expended on his Ninth Circuit appeal "did not enhance the result obtained by him in any way." 46 F. Supp. at 1067.
Accordingly, I conclude that based on the result obtained, claimant is entitled to recover his fees and expenses associated with the Ninth Circuit appeal.
3. Fees Associated with Petition for Rehearing
Claimant incurred 53.65 hours of attorney time ($7,498.66) in connection with his petition for rehearing en banc. The Commissioner objects to this portion of claimant's request on the ground that he obtained no additional benefit from this expense.
Claimant fails to explain how the petition for rehearing advanced his position beyond that achieved in the original appeal. My review of the amended Ninth Circuit opinion confirms that claimant achieved no benefit whatsoever from the additional sums expended. Consequently, this portion of claimant's request for fees and expenses is denied.
4. Disallowed Expenses
Claimant's Statement of Costs reveals that of his total request, the sum of $306.67 relates to the motion to alter or amend judgment and the petition for rehearing. These amounts are disallowed.
CONCLUSION
Claimant's Application for Fees and Expenses is allowed in the following amounts: Claimant is awarded the sum of $20,005.28 in attorney fees and $1,193.72 in expenses.