Atkins v. Apfel

• Decision Date: 31 August 1998
• Docket Number: Nos. 96-35756,96-36001,s. 96-35756
• Parties: , 98 Cal. Daily Op. Serv. 6762, 98 Daily Journal D.A.R. 9407 Harold ATKINS, Plaintiff-Appellee, v. Kenneth S. APFEL, * Commissioner, Social Security Administration, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 986

154 F.3d 986

58 Soc.Sec.Rep.Ser. 180, 98 Cal. Daily Op.

Serv. 6762,

98 Daily Journal D.A.R. 9407

Harold ATKINS, Plaintiff-Appellee, v. Kenneth S. APFEL, ^* Commissioner, Social Security Administration, Defendant-Appellant Nos. 96-35756, 96-36001.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Jan. 6, 1998.

Decided Aug. 31, 1998.

Mary K. Doyle, United States Department of Justice, Washington, DC, for defendant-appellant.

Ralph Wilborn, Eugene, OR, for plaintiff-appellee.

Appeals from the United States District Court for the District of Oregon; Helen J. Frye, District Judge, Presiding. D.C. No. CV-92-01650 HJF.

Before: PREGERSON, TROTT, and TASHIMA, Circuit Judges.

TASHIMA, Circuit Judge:

The issue before this court in these consolidated appeals is whether the Supreme Court's decision in Commissioner, INS v. Jean, 496 U.S. 154, 110 S.Ct. 2316, 110 L.Ed.2d 134 (1990), limited the application of the "results obtained" analysis of Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983), in cases involving the Equal Access to Justice Act (EAJA). The Commissioner claims that the district court abused its discretion when it awarded Plaintiff approximately $10,000 in attorney's fees for an unsuccessful appeal without regard to the results obtained on that appeal. We conclude that a district court must consider the results obtained, as required by Hensley, when determining whether EAJA fees requested by a prevailing party for an unsuccessful appeal are reasonable.

BACKGROUND

Plaintiff Harold Atkins (Plaintiff) applied for disability insurance benefits under Title II of the Social Security Act. The Social Security Administration (Commissioner) concluded that he was ineligible for benefits, and Plaintiff sought judicial review of the agency's decision in the district court. The district court concluded that the administrative law judge had erred by (1) applying a different exertional level than that set forth in the Dictionary of Occupational Titles, and (2) posing a hypothetical question to a vocational expert which did not include the Plaintiff's visual impairment. It vacated the Commissioner's decision and remanded the case to the agency. Atkins v. Shalala, 837 F.Supp. 318 (D.Or.1993).

Despite prevailing in the district court to the extent that the agency decision was vacated and the case remanded, Plaintiff appealed to the Court of Appeals, again claiming that he was entitled to an outright award of benefits, rather than a remand. We affirmed the district court's decision. Atkins v. Shalala, 61 F.3d 751 (9th Cir.1995). Both parties filed petitions for rehearing. We denied the petitions, but modified the panel opinion, at the Commissioner's request, in light of new precedent on the issue of whether the exertional classifications in the Dictionary of Occupational Titles can be rebutted. Atkins v. Chater, 70 F.3d 529 (9th Cir.1995). Plaintiff's position was not advanced by the appeal.

After the district court's decision was affirmed, Plaintiff sought attorney's fees and expenses under the EAJA, 28 U.S.C. § 2412(d)(1)(A). Plaintiff initially requested $14,480.95, approximately $4,000 of which had been expended in the district court litigation and $10,000 on appeal. The Commissioner opposed the request for appellate fees and expenses. Nonetheless, the district court awarded Plaintiff the full amount requested, $14,480.95. The Commissioner appeals this order in No. 96-35756. Plaintiff then filed two supplemental applications for fees to cover the additional cost of litigating the fees award in the district court. Plaintiff requested $4,324.79 and $396.08, and the district court awarded Plaintiff those amounts as well. The Commissioner appeals that order in No. 96-36001. The total amount awarded in attorney's fees and expenses was $19,210.82.

STANDARD OF REVIEW

The amount of attorney's fees awarded under the EAJA by the district court is reviewed for an abuse of discretion. Brown v. Sullivan, 916 F.2d 492, 495 (9th Cir.1990). A district court abuses its discretion if it bases its decision on an erroneous legal conclusion or on a clearly erroneous finding of fact. United States v. Rubin, 97 F.3d 373, 375 (9th Cir.1996). Issues involving the interpretation of the EAJA are reviewed de novo. Id.

DISCUSSION

A. The Equal Access to Justice Act

The EAJA provides:

[A] court shall award to a prevailing party other than the United States fees and other expenses ..., incurred by that party in an civil action (other than cases sounding in tort) including proceedings for judicial review of agency action, brought by or against the United States ..., 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) (emphasis added). "Fees and other expenses" include "reasonable attorney fees." 28 U.S.C. § 2412(d)(2)(A). Under the EAJA, attorney's fees are set at the market rate, but capped at $125 per hour. Id. The statute explicitly permits the court, in its discretion, to reduce the amount awarded to the prevailing party to the extent that the party "unduly and unreasonably protracted" the final resolution of the case. 28 U.S.C. §§ 2412(d)(1)(C), 2412(d)(2)(D).

In this case, it is undisputed that Plaintiff is a "prevailing party," that the position of the Commissioner was not substantially justified, and that Plaintiff did not "unduly and unreasonably" protract the litigation of the case. In a word, it is undisputed that Plaintiff The Commissioner contends that the amount awarded was not reasonable. He argues that the district court abused its discretion by not considering the results obtained by the appeal, as required by Hensley, before awarding Plaintiff all of the fees and expenses requested. We agree.

was entitled to reasonable attorney's fees. The issue is whether $19,210.82 is a reasonable amount for the expenses and fees in this case.

B. The Hensley and Jean Decisions

Hensley involved 42 U.S.C. § 1988 (Fees Act), which provides that "the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs." 461 U.S. at 426, 103 S.Ct. 1933. In Hensley, the Court set out to "clarify the proper relationship of the results obtained to an award of attorney's fees." Id. at 432, 103 S.Ct. 1933. The Court concluded that a "reasonable fee" requires more inquiry by a district court than finding the "product of reasonable hours times a reasonable rate." Id. at 434, 103 S.Ct. 1933. The district court must also consider the "results obtained." The Court stated:

[The results obtained] factor is particularly crucial where a plaintiff is deemed "prevailing" even though he succeeded on only some of his claims for relief. In this situation two questions must be addressed. First, did the plaintiff fail to prevail on claims unrelated to the claims on which he succeeded? Second, did the plaintiff achieve a level of success that makes the hours reasonably expended a satisfactory basis for making a fee award?

Id. The Court continued:

When an adjustment [in fees] is requested on the basis of either the exceptional or limited nature of the relief obtained by the plaintiff, the district court should make clear that it has considered the relationship between the amount of the fee awarded and the results obtained.

461 U.S. at 437, 103 S.Ct. 1933.

In Clark v. City of Los Angeles, 803 F.2d 987, 993 (9th Cir.1986), a Fees Act case, we denied the plaintiffs' request for fees associated with an unsuccessful appeal because "[a]lthough they were prevailing parties in the case overall, it is clear that nothing associated with the appeal contributed to any favorable result achieved by the litigation." See also Outdoor Sys., Inc. v. City of Mesa, 997 F.2d 604, 619 (9th Cir.1993) (Under Hensley, a district court may "disallow any fees for time spent litigating the case after the last benefit won from the defendant.") (citation omitted). If Hensley is applicable, under Ninth Circuit precedent, a prevailing party who pursues an appeal which results in no further benefit would not be entitled to the fees and costs associated with that appeal.

Although Hensley did not involve the EAJA, the Court pointedly noted: "The standards set forth in this opinion are generally applicable in all cases which Congress has authorized an award of fees to a 'prevailing party.' " 461 U.S. at 433 n. 7, 103 S.Ct. 1933. In Jean, the Supreme Court made it clear that Hensley applies to EAJA cases. The Court stated:

[O]nce a private litigant has met the multiple conditions for eligibility for EAJA fees, the district court's task of determining what fee is reasonable is essentially the same as that described in Hensley. See id. [461 U.S.] at 433-437 .

496 U.S. at 161. The cited pages from Hensley include the discussion regarding the need to consider the results obtained when determining a reasonable fee award. In Jean, the Court stated that the district court's task in determining the reasonableness of an award is "essentially the same as that described in Hensley," and the EAJA "prescribes a similar flexibility." 496 U.S. at 161, 110 S.Ct. 2316 (emphasis added). Plaintiff insists that, because the analysis is not exactly the same as under Hensley, Hensley's "results obtained" analysis does not apply at all. Plaintiff misinterprets Jean.

In Jean, the question was whether a prevailing party under the EAJA was entitled to fees for the litigation over the fees (fees on fees). The government argued that, although its position was not substantially justified in the underlying merits litigation, it The Court stated that the issue in Jean was narrow, "[o]nly the application of the 'substantially justified' condition is at issue," 496 U.S. at 158, 110 S.Ct. 2316, and not the amount appropriately awarded for the fees on the fee litigation. The Court concluded...