1 2 3 4 5 UNITED STATES DISTRICT COURT 6 DISTRICT OF NEVADA 7 8 HUEY PETERSON BROWN, Case No.: 2:21-cv-00091-NJK
9 Plaintiff, ORDER
10 v. [Docket No. 33]
11 KILOLO KIJAKAZI, Acting Commissioner of Social Security, 12 Defendant. 13 14 Pending before the Court is Plaintiff’s unopposed motion for attorneys’ fees and expenses. 15 Docket No. 33. The Commissioner did not file a response in opposition. The request is properly 16 resolved without a hearing. See Local Rule 78-1. For the reasons discussed below, the request is 17 GRANTED in part and DENIED in part. 18 I. BACKGROUND 19 This is an action for judicial review of the denial of social security benefits. On July 12, 20 2021, the Court issued an order granting the parties’ joint stipulation for voluntary remand for 21 further administrative action pursuant to the Social Security Act § 205(g), as amended, 42 U.S.C. 22 § 405(g). Docket No. 25 at 1-2. The Court further entered final judgment in favor of Plaintiff. 23 Docket No. 26. On September 29, 2021, the Court denied without prejudice a previous motion for 24 fees and costs pursuant to the Equal Access to Justice Act (“EAJA”). Docket No 29. In particular, 25 the Court found that no showing had been made as to the appropriateness of the time expended or 26 the fees sought. Id. 27 On October 28, 2021, Plaintiff filed the instant motion for an award of $7,750 in attorneys’ 28 fees and costs pursuant to the EAJA. Docket No. 33. Plaintiff accompanied this filing with a 1 supporting memorandum and documentation. Id. Plaintiff seeks an award of $7,500 in attorneys’ 2 fees and $250 in costs. Id. at 5. 3 II. LEGAL STANDARD 4 The Court has an independent obligation for judicial review of the reasonableness of the 5 amount of fees sought under the EAJA regardless of whether the request is opposed. Douzat v. 6 Saul, 2020 WL 3408706, at *1 (D. Nev. June 11, 2020); see also Lucas v. White, 63 F. Supp. 2d 7 1046, 1060 (N.D. Cal. 1999); Antunez v. Comm’r of Soc. Sec. Admin., 2017 WL 4075830, at *2 8 (D. Ariz. Sept. 13, 2017). This obligation is consistent with Ninth Circuit precedent outside the 9 EAJA context that similarly highlights the Court’s duty to review the reasonableness of a fee 10 request. See Gates v. Deukmejian, 987 F.2d 1392, 1401 (9th Cir. 1992) (in addressing request for 11 fees under 42 U.S.C. § 1988, indicating that “the district court is required to independently review 12 [a] fee request even absent . . . objections”); see also Costa v. Comm’r of Soc. Sec. Admin., 690 13 F.3d 1132, 1135 (9th Cir. 2012) (case law interpreting § 1988 applies equally to the task of 14 determining a reasonable fee under the EAJA). This obligation is also highlighted by the Court’s 15 Local Rules. See Local Rule 7-2(d) (an unopposed motion may be summarily granted except, inter 16 alia, a motion for attorneys’ fees); Local Rule 54-14(d) (“If no opposition is filed, the court may 17 grant the motion [for attorneys’ fees] after independent review of the record”). 18 Fees awarded pursuant to the EAJA are calculated pursuant to the lodestar method. Costa, 19 690 F.3d at 1135. Under the lodestar method, the Court determines a fee award by multiplying 20 the number of hours reasonably expended by a reasonable hourly rate. Hensley v. Eckerhart, 461 21 U.S. 424, 433 (1983). The lodestar figure is presumptively reasonable. Cunningham v. Cty. of 22 Los Angeles, 879 F.2d 481, 488 (9th Cir. 1988). Courts have “substantial discretion in fixing the 23 amount of an EAJA award.” I.N.S. v. Jean, 496 U.S. 154, 163 (1990).1 24 . . . . 25 . . . . 26
27 1 Adjustments to the lodestar are proper in only “rare and exceptional cases.” Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air, 478 U.S. 546, 565 (1986). See also ). The 28 Court finds that a departure from the lodestar is not warranted in this case. 1 III. DISCUSSION 2 A. JUDICIAL REVIEW 3 Plaintiff submits that the Court should ignore its obligation to rigorously examine the 4 reasonableness of the requested fees in favor of allowing a settlement regarding the amount of 5 owed attorneys’ fees. See Docket No. 33 at 4. In effect, Plaintiff asks the Court to approve his fee 6 request without reviewing the factual premises upon which the fee request relies, including the 7 hours claimed to be expended and the hourly rate purported to be reasonable. See id. To do so, 8 however, would nullify the Court’s independent legal obligation to review the reasonableness of 9 the requested fees. Thus, the Court will assess the reasonableness of the instant request for 10 attorneys’ fees by reviewing the hours claimed to be expended and the hourly rate purported to be 11 reasonable. 12 B. TIME SPENT 13 The touchstone in determining the hours for which attorneys’ fees should be calculated is 14 whether the expenditure of time was reasonable. See, e.g., Marrocco v. Hill, 291 F.R.D. 586, 588 15 (D. Nev. 2013). The Court “has a great deal of discretion in determining the reasonableness of the 16 fee and, as a general rule, [an appellate court] will defer to its determination . . . regarding the 17 reasonableness of the hours claimed by the [movant].” Prison Legal News v. Schwarzenegger, 18 608 F.3d 446, 453 (9th Cir. 2010). The reasonableness of hours expended depends on the specific 19 circumstances of each case. Camacho v. Bridgeport Fin’l, Inc., 523 F.3d 973, 978 (9th Cir. 2008). 20 Plaintiff seeks to recover 37.6 hours of attorney time spend on this case. Docket Nos. 33 21 at 3, 33-1 at 2-3. Plaintiff submits that one attorney worked on this matter: Mr. Ashish A. Agrawal, 22 Esq.. Docket No 33-1 at 1. Plaintiff submits that, because counsel did not represent Plaintiff in 23 the administrative level proceedings, significant time was required to conduct record review. 24 Docket No. 33 at 2-3. Further, Plaintiff submits that the Commissioner’s position required 25 additional time and research for litigation. Id. at 3. The Court finds that the reported hours are 26 reasonable, and will therefore include 37.6 hours of attorney time in the lodestar calculation. 27 . . . . 28 . . . . 1 C. HOURLY RATE 2 Under the EAJA, reasonable attorneys’ fees “shall be based upon prevailing market rates 3 of the kind and quality of the services furnished, . . . and (ii) attorney fees shall not be awarded in 4 excess of $125 per hour unless the court determines that an increase in the cost of living or a special 5 factor, such as the limited availability of qualified attorneys for the proceedings involved, justifies 6 a higher fee.” 28 U.S.C. § 2412(d)(2)(A); see also Thangaraja v. Gonzales, 428 F.3d 870, 876– 7 77 (9th Cir. 2005). A cost-of-living adjustment is not automatic. McNulty v. Sullivan, 886 F.2d 8 1074, 1074 (8th Cir. 1989). Whether to adjust the hourly rate to compensate for inflation is a 9 matter entrusted to the Court’s discretion. Sorenson v. Mink, 239 F.3d 1140
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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 DISTRICT OF NEVADA 7 8 HUEY PETERSON BROWN, Case No.: 2:21-cv-00091-NJK
9 Plaintiff, ORDER
10 v. [Docket No. 33]
11 KILOLO KIJAKAZI, Acting Commissioner of Social Security, 12 Defendant. 13 14 Pending before the Court is Plaintiff’s unopposed motion for attorneys’ fees and expenses. 15 Docket No. 33. The Commissioner did not file a response in opposition. The request is properly 16 resolved without a hearing. See Local Rule 78-1. For the reasons discussed below, the request is 17 GRANTED in part and DENIED in part. 18 I. BACKGROUND 19 This is an action for judicial review of the denial of social security benefits. On July 12, 20 2021, the Court issued an order granting the parties’ joint stipulation for voluntary remand for 21 further administrative action pursuant to the Social Security Act § 205(g), as amended, 42 U.S.C. 22 § 405(g). Docket No. 25 at 1-2. The Court further entered final judgment in favor of Plaintiff. 23 Docket No. 26. On September 29, 2021, the Court denied without prejudice a previous motion for 24 fees and costs pursuant to the Equal Access to Justice Act (“EAJA”). Docket No 29. In particular, 25 the Court found that no showing had been made as to the appropriateness of the time expended or 26 the fees sought. Id. 27 On October 28, 2021, Plaintiff filed the instant motion for an award of $7,750 in attorneys’ 28 fees and costs pursuant to the EAJA. Docket No. 33. Plaintiff accompanied this filing with a 1 supporting memorandum and documentation. Id. Plaintiff seeks an award of $7,500 in attorneys’ 2 fees and $250 in costs. Id. at 5. 3 II. LEGAL STANDARD 4 The Court has an independent obligation for judicial review of the reasonableness of the 5 amount of fees sought under the EAJA regardless of whether the request is opposed. Douzat v. 6 Saul, 2020 WL 3408706, at *1 (D. Nev. June 11, 2020); see also Lucas v. White, 63 F. Supp. 2d 7 1046, 1060 (N.D. Cal. 1999); Antunez v. Comm’r of Soc. Sec. Admin., 2017 WL 4075830, at *2 8 (D. Ariz. Sept. 13, 2017). This obligation is consistent with Ninth Circuit precedent outside the 9 EAJA context that similarly highlights the Court’s duty to review the reasonableness of a fee 10 request. See Gates v. Deukmejian, 987 F.2d 1392, 1401 (9th Cir. 1992) (in addressing request for 11 fees under 42 U.S.C. § 1988, indicating that “the district court is required to independently review 12 [a] fee request even absent . . . objections”); see also Costa v. Comm’r of Soc. Sec. Admin., 690 13 F.3d 1132, 1135 (9th Cir. 2012) (case law interpreting § 1988 applies equally to the task of 14 determining a reasonable fee under the EAJA). This obligation is also highlighted by the Court’s 15 Local Rules. See Local Rule 7-2(d) (an unopposed motion may be summarily granted except, inter 16 alia, a motion for attorneys’ fees); Local Rule 54-14(d) (“If no opposition is filed, the court may 17 grant the motion [for attorneys’ fees] after independent review of the record”). 18 Fees awarded pursuant to the EAJA are calculated pursuant to the lodestar method. Costa, 19 690 F.3d at 1135. Under the lodestar method, the Court determines a fee award by multiplying 20 the number of hours reasonably expended by a reasonable hourly rate. Hensley v. Eckerhart, 461 21 U.S. 424, 433 (1983). The lodestar figure is presumptively reasonable. Cunningham v. Cty. of 22 Los Angeles, 879 F.2d 481, 488 (9th Cir. 1988). Courts have “substantial discretion in fixing the 23 amount of an EAJA award.” I.N.S. v. Jean, 496 U.S. 154, 163 (1990).1 24 . . . . 25 . . . . 26
27 1 Adjustments to the lodestar are proper in only “rare and exceptional cases.” Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air, 478 U.S. 546, 565 (1986). See also ). The 28 Court finds that a departure from the lodestar is not warranted in this case. 1 III. DISCUSSION 2 A. JUDICIAL REVIEW 3 Plaintiff submits that the Court should ignore its obligation to rigorously examine the 4 reasonableness of the requested fees in favor of allowing a settlement regarding the amount of 5 owed attorneys’ fees. See Docket No. 33 at 4. In effect, Plaintiff asks the Court to approve his fee 6 request without reviewing the factual premises upon which the fee request relies, including the 7 hours claimed to be expended and the hourly rate purported to be reasonable. See id. To do so, 8 however, would nullify the Court’s independent legal obligation to review the reasonableness of 9 the requested fees. Thus, the Court will assess the reasonableness of the instant request for 10 attorneys’ fees by reviewing the hours claimed to be expended and the hourly rate purported to be 11 reasonable. 12 B. TIME SPENT 13 The touchstone in determining the hours for which attorneys’ fees should be calculated is 14 whether the expenditure of time was reasonable. See, e.g., Marrocco v. Hill, 291 F.R.D. 586, 588 15 (D. Nev. 2013). The Court “has a great deal of discretion in determining the reasonableness of the 16 fee and, as a general rule, [an appellate court] will defer to its determination . . . regarding the 17 reasonableness of the hours claimed by the [movant].” Prison Legal News v. Schwarzenegger, 18 608 F.3d 446, 453 (9th Cir. 2010). The reasonableness of hours expended depends on the specific 19 circumstances of each case. Camacho v. Bridgeport Fin’l, Inc., 523 F.3d 973, 978 (9th Cir. 2008). 20 Plaintiff seeks to recover 37.6 hours of attorney time spend on this case. Docket Nos. 33 21 at 3, 33-1 at 2-3. Plaintiff submits that one attorney worked on this matter: Mr. Ashish A. Agrawal, 22 Esq.. Docket No 33-1 at 1. Plaintiff submits that, because counsel did not represent Plaintiff in 23 the administrative level proceedings, significant time was required to conduct record review. 24 Docket No. 33 at 2-3. Further, Plaintiff submits that the Commissioner’s position required 25 additional time and research for litigation. Id. at 3. The Court finds that the reported hours are 26 reasonable, and will therefore include 37.6 hours of attorney time in the lodestar calculation. 27 . . . . 28 . . . . 1 C. HOURLY RATE 2 Under the EAJA, reasonable attorneys’ fees “shall be based upon prevailing market rates 3 of the kind and quality of the services furnished, . . . and (ii) attorney fees shall not be awarded in 4 excess of $125 per hour unless the court determines that an increase in the cost of living or a special 5 factor, such as the limited availability of qualified attorneys for the proceedings involved, justifies 6 a higher fee.” 28 U.S.C. § 2412(d)(2)(A); see also Thangaraja v. Gonzales, 428 F.3d 870, 876– 7 77 (9th Cir. 2005). A cost-of-living adjustment is not automatic. McNulty v. Sullivan, 886 F.2d 8 1074, 1074 (8th Cir. 1989). Whether to adjust the hourly rate to compensate for inflation is a 9 matter entrusted to the Court’s discretion. Sorenson v. Mink, 239 F.3d 1140, 1148–49 (9th Cir. 10 2001) (“District courts may adjust that fee to compensate for an increase in the cost of living”) 11 (emphasis added); see also Jawad v. Barnhart, 370 F. Supp. 2d 1077, 1080 (S.D. Cal. 2005). The 12 movant bears the burden of establishing a sufficient basis for such an enhancement. Bryant v. 13 Comm’r of Soc. Sec., 578 F.3d 443, 450 (6th Cir. 2009). Even when a showing has been made for 14 enhanced rates under the EAJA, the movant must also show that those rates are in line with the 15 prevailing rates in the community for similar services by lawyers of reasonably comparable skill, 16 experience, and reputation. Nadarajah, 569 F.3d at 916; see also Bryant, 578 F.3d at 450. 17 Plaintiff seeks an hourly attorney rate of $207.00. Docket No. 33 at 2. Plaintiff fails to 18 include any information showing that such a rate is in line with the prevailing rates in the 19 community for similar services by lawyers of comparable skill, experience, and reputation. 20 Plaintiff’s only showing in support of such a rate being proper is based on an increase in the cost 21 of living, supported by a citation to the Consumer Price index and the fact that counsel would 22 typically charge an hourly rate of $325.00 for legal representation. Id.at 2-3, 8. However mere 23 reference to the consumer law survey is not grounds to award the rate sought. See, e.g., Rosemary 24 C. v. Berryhill, 2018 WL 6634348, at *5 (D. Me. Dec. 19, 2018) (discounting value of consumer 25 law survey given that it does not specify that it includes data for legal professionals working in the 26 social security field). Absent any additional reason as to why such an increase is proper, the Court 27 finds that Plaintiff fails to provide sufficient information permitting the Court to exercise its 28 discretion to increase the attorney hourly rate provided for in the EAJA. Therefore, the Court will 2|| calculate the attorneys’ fees at the $125 statutory cap. 3 D. LODESTAR CALCULATION 4 Tn light of the above, the Court will award attorneys’ fees in the amount of 37.6 hours of 5|| attorney time at the hourly rate of $125 plus $250.00 of costs. Accordingly, attorneys’ fees and costs will be awarded in the amount of $4,950. IV. CONCLUSION 8 For the reasons discussed above, Plaintiff's request for fees and expenses, Docket No. 33, 9] is hereby GRANTED in part and DENIED in part. Attorneys’ fees and costs will be awarded in 10} the amount of $4,950. These fees awarded under the EAJA must offset any later attorneys’ fees 11} awarded under 42 U.S.C. § 406(b), if such an award is made. 12 IT IS SO ORDERED. 13 Dated: November 8, 2021 Ua 14 07, □ 15 Unite Sines Ma gistrate Judge 16 17 18 19 20 21 22 23 24 25 26 27 28