United States District Court, D. Nevada
JAMES A. WYATT, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security Defendant.
REPORT & RECOMMENDATION OF UNITED STATES
MAGISTRATE JUDGE RE: ECF NO. 29
William G. Cobb United States Magistrate Judge.
Report and Recommendation is made to the Honorable Howard D.
McKibben, United States District Judge. The action was
referred to the undersigned Magistrate Judge pursuant to 28
U.S.C. § 636(b)(1)(B) and the Local Rules of Practice,
LR 1B 1-4.
the court is Plaintiff's Motion for Award of Attorney
Fees Pursuant to the Equal Access to Justice Act (EAJA), 28
U.S.C. § 2412(d), and Costs Pursuant to 28 U.S.C. §
1920. (ECF No. 29.) The Commissioner of Social Security did
not file a response.
thorough review, it is recommended that the motion be
represented by counsel, filed his complaint requesting review
of the Commissioner's final decision. (ECF No. 1.)
Plaintiff filed a motion to remand, and the Commissioner
filed a response and cross-motion to affirm. (ECF Nos 16, 17.
18.) The undersigned issued a report and recommendation that
Plaintiff's motion to remand be denied, and the
Commissioner's cross-motion to affirm be granted. (ECF
No. 20.) Plaintiff filed an objection. (ECF No. 21.) District
Judge McKibben adopted and accepted the report and
recommendation, and denied Plaintiff's motion for remand
and granted the Commissioner's cross-motion to affirm
thereby affirming the final decision of the Commissioner, and
entered judgment. (ECF Nos. 22, 23.) Plaintiff appealed. (ECF
No. 24.) The parties subsequently stipulated that the matter
be remanded to the Commissioner for further proceedings under
sentence four of 42 U.S.C. § 405(g), and further
stipulated that on remand the Appeals Council should issue a
favorable decision finding Plaintiff disabled on his amended
alleged onset date, December 9, 2015, which was the date he
became an individual of advanced age. (See ECF No.
27.) Therefore, the appeal was dismissed. (Id.)
Judge McKibben issued an order on the mandate. (ECF No. 28.)
now moves for fees as prevailing party under the EAJA in the
amount of $11, 881.35 and $905 in costs (the $400 filing fee
in this action and the $505 filing fee in the Ninth Circuit)
under 28 U.S.C. § 1920.
the EAJA, "a court shall award to a prevailing party
other than the United States fees and other expenses ...
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);
see also Pierce v. Underwood, 487 U.S. 552, 566 n. 2
(1988); Hardisty v. Astrue, 592 F.3d 1072, 1076 (9th
Cir. 2010). "[F]ees and other expenses" include
"reasonable attorney fees." 28 U.S.C. §
the EAJA, attorney's fees are set at the market rate, but
capped at $125 per hour "unless the court determines
that an increase in the cost of living or a special factor,
such as the limited availability of qualified attorneys for
the proceedings involved, justifies a higher fee." 28
U.S.C. § 2412(d)(2)(A). The Ninth Circuit has set the
applicable statutory maximum hourly rate under the EAJA,
adjusted for increases in the cost of living by year.
applicant for benefits becomes the prevailing party upon
procuring a sentence-four remand for further administrative
proceedings, regardless of whether he later succeeds in
obtaining the requested benefits." Flores v.
Shalala, 49 F.3d 562, 568 (9th Cir. 1995) (citing
Shalala v. Schaefer, 509 U.S. 292 (1993)).
Plaintiff obtained a sentence four remand and a favorable
decision for Plaintiff by stipulation, as set forth in the
Ninth Circuit's order and District Judge McKibben's
order on the mandate. ...