United States District Court, D. Nevada
KENT J. DAWSON, District Judge.
Before the Court are two motions for fees and costs filed by Plaintiff Robyn Burton's counsel ("Counsel"). Counsel filed an original Motion for fees under the Equal Access to Justice Act ("EAJA") (#35) which was later amended (#36), and then amended yet again (#44) in order to include the necessary elements. Furthermore, none of these filings contain the complete motion, but rather Counsel improperly left it to the Court to amalgamate his claims and evidence. The Social Security Administration ("Defendant") opposed the motion(s) (#40) and Counsel replied (#45). Counsel also filed a motion for fees and costs under 42 U.S.C. § 406(b) (#43). Defendant responded (#51), and Counsel failed to reply. The background of this matter is familiar to the Court and the parties and so will not be recounted here.
I. Legal Standards
"Fee awards may be made under both [the EAJA and 42 U.S.C. § 406(b)], but the claimant's attorney must refund to the claimant the amount of the smaller fee. Gisbrecht v. Barnhart , 535 U.S. 789, 796 (2002) (alterations and citation omitted). To be clear, the government pays EAJA fees, while the claimant pays fees under 406(b). See, e.g., Parrish v. Comm'r of Soc. Sec. Admin. , 698 F.3d 1215, 1218 (9th Cir. 2012). Thus, the EAJA award offsets an award under 42 U.S.C. § 406(b) up to the point that the claimant actually receives 100 percent of the past-due benefits. Gisbrecht , 535 U.S. at 796. The Court also notes that an award under the EAJA belongs to the litigant, and not to counsel directly. Astrue v. Ratliff , 560 U.S. 586, 593 (2010).
A. EAJA Fees under 28 U.S.C. § 2412(d)
i. The Statute Generally
Fees and "other expenses" under 28 U.S.C. § 2412(d) "shall" be awarded to a "prevailing party" unless the Court finds the position of the Social Security Administration to be "substantially justified...." § 2412(d)(1)(A). To obtain fees and other expenses, a party must comply with § 2412(d). The contested requirements are listed below:
The party seeking fees and other expenses must not have a net worth exceeding $2, 000, 000 at the time the civil action was filed.
Allege that the position of the government was not substantially justified based upon the record
Request only "reasonable" fees and costs
ii. Substantial Justification
"The government bears the burden of demonstrating substantial justification." Thangaraja v. Gonzales , 428 F.3d 870, 874 (9th Cir. 2005). The government's positions are "substantially justified" when they are founded upon "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Pierce v. Underwood , 487 U.S. 552, 565 (1988) (citing Consol. Edison Co. of New York v. N.L.R.B. , 305 U.S. 197, 229 (1938)). Thus, the government's positions must have a "reasonable basis both in law and fact." Id. at 565. However, it is a "decidedly unusual case in which there is substantial justification under the EAJA even though the agency's decision was reversed as lacking in reasonable, substantial and probative evidence in the record." Al-Harbi v. I.N.S. , 284 F.3d 1080, 1085 (9th Cir. 2002) (internal quotations omitted). The Ninth Circuit recently underscored the substantial overlap between cases where the ALJ's decision lacks substantial evidence and where the government's position is not substantially justified:
While this circuit has been clear that when an agency's decision is unsupported by substantial evidence it is a strong indication that the position of the United States is not substantially justified, this circuit has never stated that every time this court reverses and remands the ALJ's decision for ...