Elishia L. Hudson v. Commissioner of Social Security

Opinion

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5 6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT TACOMA 9 CASE NO. 3:25-cv-05241-GJL 11 Plaintiff, v. ORDER ON MOTION FOR COMMISSIONER OF SOCIAL EXPENSES 14 Defendant.

15 Pending before the Court is Plaintiff Elishia L. Hudson’s Motion for Attorney Fees and 16 Expenses (“Motion”) pursuant to the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412. 17 Dkt. 22. In the Motion, Plaintiff requests $10,914.40 in attorney fees and $9.65 in expenses. Id. 18 Plaintiff requests an additional award of $1,033.84 to compensate the time spent replying to the 19 Motion. See Dkt. 27 at 4. The Commissioner acknowledges that Plaintiff is the prevailing party 20 but objects to the Motion, arguing the Court should reduce Plaintiff’s fee request because the 21 amount sought is unreasonable. Dkt. 25. As explained below, the Court agrees that a fee 22 reduction is warranted, and thereby GRANTS in part and DENIES in part Plaintiff’s Motion. 23 Dkt. 22. 24 2 Under EAJA, the Court awards fees and expenses to a prevailing party in a suit against 3 the government unless it concludes the position of the government was “substantially justified or 4 that special circumstances make an award unjust.” 28 U.S.C. § 2412(d)(1)(A). The parties do not

5 dispute that Plaintiff is the prevailing party here, and there are no special circumstances that 6 would make an award unjust. As noted above, however, the parties do dispute the reasonableness 7 of the fees requested by Plaintiff. 8 The Court may award EAJA fees for attorney hours reasonably expended by a plaintiff’s 9 counsel. 28 U.S.C. § 2412(d)(2)(A). “The most useful starting point for determining the amount 10 of a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a 11 reasonable hourly rate.” Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). Further, in determining 12 whether the hours expended were reasonable, the Court will consider: (1) awards in similar 13 cases; and (2) the novelty and difficulty of the questions involved in the case. See Hensley, 461 14 U.S. at 429–30 n.3; Johnson v. Georgia Highway Exp., Inc., 488 F.2d 714, 717–19 (5th Cir.

15 1974). “[E]xcessive, redundant, or otherwise unnecessary” hours should be excluded from the 16 fee award. Hensley, 461 U.S. at 434. The Court may also reduce hours that are billed in a block 17 format, “because block billing makes it more difficult to determine how much time was spent on 18 particular activities.” Welch v. Metro. Life Ins. Co., 480 F.3d 942, 948 (9th Cir. 2007) (citations 19 omitted). 20 “[T]he fee applicant bears the burden of establishing entitlement to an award and 21 documenting the appropriate hours expended.” Hensley, 461 U.S. at 437. “The party opposing 22 the fee application has a burden of rebuttal that requires submission of evidence to the district 23

24 1 court challenging the accuracy and reasonableness of the hours charged.” Gates v. Deukmejian, 2 987 F.2d 1392, 1397-98 (9th Cir. 1992) (citations omitted). 4 The Commissioner gives several reasons for challenging the reasonableness of the fee

5 award Plaintiff requests through her attorney, Eitan Kassel Yanich. The Court will discuss these 6 reasons in turn. 7 A. Counsel’s Insufficiently Developed Arguments and Unreasonable Summaries of 8 Medical Records Justify a Fee Reduction 9 The Commissioner argues that Counsel’s briefing contained underdeveloped arguments 10 and unnecessary summaries of medical evidence that were in violation of the Court’s Scheduling 11 Order. Dkt. 25 at 3–6. In support, the Commissioner points out the Court’s criticism of the 12 briefing in its Order reversing the Commissioner’s decision. Dkt. 20 at 5 n.3. In its Order, the 13 Court declined to assess a portion of the medical evidence summarized by Plaintiff in the 14 Opening Brief because Counsel had “summarize[d] some of the rest of the medical evidence but

15 fail[ed] to raise any argument in doing so.” Id. Further, the Court found that Counsel described 16 the medical opinion of Shirley Deem, MD, and made some assertions about the opinion, but held 17 those assertions were “not an argument challenging the ALJ’s assessment of Dr. Deem’s 18 opinion.” Id. 19 The Commissioner also points out that the pages of summaries Counsel did provide were 20 not only unavailing for Plaintiff’s appeal (see Dkt. 16 at 8–11), but also were specifically 21 prohibited by the Court’s Scheduling Order (Dkt. 12 at 2 (“Plaintiff should not set forth a 22 separate lengthy recitation of background facts or medical evidence.”)). The Commissioner 23 points to several previous occasions in which the Court has admonished Counsel regarding such

24 1 deficiencies in his briefing. See Dkt. 25 at 5 (citing Kreig v. Colvin, No. 3:15-cv-5478-JPD, Dkt. 2 23 (W.D. Wash. September 12, 2016) (reducing Counsel’s fees by 20% for duplicating effort and 3 drafting unnecessary testimony portion of the opening brief); Petersen v. Colvin, No. 3:15-cv- 4 5349-RLS, Dkt. 33 (W.D. Wash. July 6, 2016) (reducing Counsel’s fees by 35% for spending

5 excessive hours on the opening brief); Stearns v. Colvin, No. 3:15-cv-5611-JRC, 2016 WL 6 730301 (W.D. Wash. February 24, 2016) (reducing Counsel’s fees by almost 22% for spending 7 excessive and unreasonable hours on the opening brief); Moncrief v. Berryhill, No. 2:15-cv- 8 01567-BAT, Dkt. 35 (W.D. Wash. March 27, 2017) (30% reduction in Counsel’s requested fee); 9 but see Estacio v. Colvin, No. 3:15-cv-05717, Dkt. 22 (W.D. Wash. November 1, 2016) 10 (granting all the request fees)). In the Reply, Counsel accuses the Commissioner of “selectively 11 cit[ing]” these cases without acknowledging the “hundreds” of cases where the full requested 12 EAJA fee was approved. Dkt. 26 at 3. 13 Finally, the Commissioner asserts a 25 percent across-the-board fee reduction is 14 warranted because Counsel’s “block billing makes it impossible to determine what hours were

15 spent summarizing the medical evidence the Court declined to consider versus the more 16 sufficiently developed opinion evidence and subjective testimony evaluation arguments.” Dkt. 25 17 at 5–6 (citing Joseph L. S.C. v. Comm’r of Soc. Sec., No. 3:23-cv-05246-SKV, 2024 WL 18 4469349, at *3 (“Mr. Yanich’s time records make it impossible to pin-point specific sources of 19 excessive time”), aff’d St. Charles v. Bisignano, No. 24-7392, 2026 WL 323715 (9th Cir. Feb. 6, 20 2026); Lang v. Saul, No. 1:18-cv-01605-SKO, 2020 WL 4339496, at *6 (E.D. Cal. July 28, 21 2020) (“[g]iven the block billing and overbilling that occurred,” the court exercised its discretion 22 to reduce the reported time)). In the Reply, Counsel counters that “[b]rief writing is a continuous 23

24 1 process . . . [and] i[t] is unclear what the purpose is of attempting to break this time down into 2 granular detail.” Dkt. 26 at 4. 3 While the Commissioner here cites to four cases in support of its argument, see Dkt. 25 at 4 5, the Court is aware of several additional occasions in which Counsel has also been admonished

5 for briefing deficiency. See Joseph L. S.C., 2024 WL 4469349, at *1 n.1 (citing cases). 6 B. Counsel’s Fee Request is More Than 50% Above An Average Request for Billing 7 and Counsel’s Briefing Was Less Clear than Briefing Filed by Other Parties on the 8 Same Issues in Separate Cases Submitted to the Appeals Council 9 The Commissioner argues the fee award requested by Plaintiff is unreasonable given that, 10 if it was granted, the award would be “well above the amount of an average EAJA award, both 11 nationally and in the Western District of Washington.” See Dkt. 25 at 6–8. The Commissioner 12 asks the Court to take judicial notice of the Administrative Conference of the United States’ 13 (“ACUS”) searchable database that tracks EAJA fee awards and other expenses. Id. at 6–7. A 14 snapshot of the previous six fiscal years indicates that Counsel’s requested fee award of

15 $10,914.40 is indeed at least double the average EAJA award. See id. at 7. However, in the 16 Reply, Counsel argues the Court should not give weight to the Commissioner’s citation to the 17 ACUS database because it is based on raw data that is not verified. Dkt. 26 at 5. 18 Here, the Commissioner additionally points out that Counsel also represented Plaintiff at 19 the administrative level and submitted a letter to the Appeals Council in support of a request for 20 review of the ALJ’s decision. AR 357–61. The Commissioner argues that Counsel’s prior 21 submission to the Appeals Council made clear arguments, as opposed to the less clear Opening 22 Brief presented here. Compare Dkt. 16 with AR 357–61. The Commissioner urges that these 23 differences, coupled with size of the administrative record with which Counsel was familiar,

24 1 make Plaintiff’s high award request for work previously completed, in part, on the Opening Brief 2 even more unreasonable. Dkt. 25 at 7–8. While Counsel attempts in the Reply to distinguish 3 between the nature of the letter he submitted to the Appeals Council versus the Opening Brief, he 4 does not acknowledge the familiarity with the case that counsel must possess to take on both

5 tasks, and especially how such familiarity would affect the fee request for the Opening Brief, a 6 document he clearly drafted after the letter. Dkt. 26 at 6. 7 C. The Issues Were Not Novel or Complex, and Counsel’s Arguments Were Routine 8 The Commissioner contends that Counsel’s above-average fee request is not warranted 9 because he failed to raise issues that were complex or novel. The Court agrees. Here, the 10 Administrative Record is not unusually large (nearly 2,500 pages) and the issues raised were not 11 overly complex. See Dkts. 11, 16. In a Declaration in support of the Reply, Counsel asserts he 12 outsourced the first draft of the Opening Brief to his brother and Mr. Yanich himself then took an 13 additional 7.1 hours to “draft arguments and carefully edit the brief.” Dkt. 27 at 2. Overall, these 14 two attorneys spent a collective 33.3 hours drafting the Opening Brief, a demonstrably excessive

15 amount of time compared to the 17.9 average number of hours attorneys spend drafting an 16 opening brief in this District. Dkt. 22-2 at 1; See, e.g., Yong v. Comm’r of Social Sec., No. 3:20- 17 cv-05493-DWC, 2021 WL 4244506, at *2 (W.D. Wash. Sep. 17, 2021) (collecting cases and 18 finding that an average length of time to expend on an opening brief in this district is 17.9 19 hours); see also Robinson v. Berryhill, No. 3:16-cv-06002-JRC, 2018 WL 2441747 (W.D. Wash. 20 May 31, 2018) (decreasing Mr. Yanich’s fees based on his inclusion of unnecessary factual 21 summaries in the opening brief); Morton v. Comm’r of Social Sec., No. 2:17-cv-01703-DWC, 22 2019 WL 215289 (W.D. Wash. Jan. 16, 2019) (decreasing Mr. Yanich’s fees based in part on his 23 inclusion of an unnecessary summary of the medical evidence in the opening brief, as well as the

24 1 lack of complexity in the arguments raised). The Commissioner further notes that, even if one of 2 the issues had been more complex, Counsel’s block billing “foreclosed the possibility of 3 determining what time was actually spent on any more complex issue.” Dkt. 25 at 9. 4 The Court finds that the time Counsel claims they spent on the Opening Brief alone is

5 manifestly unreasonable, particularly when a portion of that brief was undeveloped arguments 6 and unreasonable summaries of medical evidence. See supra Part II.A. 7 D. Additional Arguments Raised in Plaintiff’s Reply 8 In the Reply, Plaintiff makes a number of arguments for why the Court “should reject” all 9 of the Commissioner’s arguments in support of a reduction of the fee award. Dkt. 26. The Court 10 finds none of Plaintiff’s arguments persuasive. See supra. While Mr. Yanich’s time records make 11 it impossible to pin-point specific sources of excessive time, see Dkt. 22-2, the Court may only 12 award EAJA fees for attorney hours reasonably expended by a plaintiff’s counsel. 28 U.S.C. § 13 2412(d)(2)(A). As set forth above, “excessive, redundant, or otherwise unnecessary” hours 14 should be excluded. Hensley, 461 U.S. at 434. As the Court previously found, a significant

15 portion of Plaintiff’s Opening Brief was undeveloped argument or unnecessary summarization of 16 medical evidence—a practice which is specifically prohibited by the Court’s Scheduling Order. 17 Despite being put on notice repeatedly by the Court to avoid this violation, Mr. Yanich has 18 ignored the warnings once again. 19 Under these circumstances, the Court finds a 25 percent reduction of the requested fee 20 award is warranted. 21 E. Additional Fees for Reply Briefing are Unreasonable 22 In the Response, the Commissioner also anticipated a request from Plaintiff for additional 23 fees to compensate for Mr. Yanich’s time spent replying to the Commissioner’s opposition to

24 1 this EAJA fee Motion. Dkt. 25 at 9–10. The Commissioner argues that, if the Commissioner’s 2 request for a reduction of Plaintiff’s EAJA fees is granted to any degree, then fees for Plaintiff’s 3 Reply brief should be denied because “fees for fee litigation should be excluded to the extent that 4 the applicant ultimately fails to prevail in such litigation.” Id. at 9–10 (citing Comm’r, I.N.S. v.

5 Jean, 496 U.S. 154, 163 n.10 (1990)). The Commissioner reasons that the government would 6 have “little incentive to raise legitimate objections” to meritless fee requests if it was forced to 7 pay additional fees for that effort. Id. at 10 (citing Thompson v. Gomez, 45 F.3d 1365, 1367–68 8 (9th Cir. 1995)). 9 Plaintiff’s Reply brief filed in support of the Motion for EAJA fees was unpersuasive in 10 rebutting the Commissioner’s request to reduce the fee award. Dkt. 26; see also Dkt. 27. It would 11 therefore be unjust to award additional fees for any time spent drafting it. See Thompson, 45 F.3d 12 at 1367–68. Moreover, similar to the Court’s reasoning in Joseph L. S.C., 2024 WL 4469349, at 13 *3, it is this Court’s intent to encourage defendants, such as the Commissioner, to challenge 14 problematic applications for statutory fee awards. As such, Plaintiff’s request for an additional

15 four hours’ worth of compensation for drafting the Reply brief, see Dkt. 26 at 8; Dkt. 27 at 4, is 16 DENIED. See Jean, 496 U.S. at 163 (“[A] district court will always retain substantial discretion 17 in fixing the amount of an EAJA award.”). 19 In sum, the Court GRANTS in part and DENIES in part Plaintiff’s Motion for EAJA 20 attorney fees. Dkt. 22. The Court finds that a 25 percent reduction of Plaintiff’s requested fee 21 award to $8,185.80 is appropriate. Moreover, Plaintiff’s request for compensation ($1,033.84) of 22 the four hours Mr. Yanich spent drafting the Reply in support of the Motion, Dkt. 26, is 23 DENIED. See Dkt. 27.

24 1 Attorney fees of $8,185.80 and expenses of $9.65 under the EAJA are AWARDED to 2 Plaintiff. If this award is not subject to offset under the Treasury Offset Program, as discussed in 3 Astrue v. Ratliff, 560 U.S. 586 (2010), payment of the award should be made to Plaintiff’s 4 attorney, Eitan Kassel Yanich, at the Law Office of Eitan Kassel Yanich, PLLC, 203 Fourth

5 Avenue E, Suite 321, Olympia, Washington 98501. Any payment of the fee may also be made to 6 Plaintiff’s counsel by electronic funds transfer (EFT). 7 8 Dated this 25th day of March, 2026. 9 A 10 11 Grady J. Leupold United States Magistrate Judge 12

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