1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DARREN JEFFREY C., Case No.: 3:21-cv-01012-AHG
12 Plaintiff, ORDER GRANTING JOINT 13 v. MOTION FOR AWARD AND PAYMENT OF ATTORNEY FEES 14 KILOLO KIJAKAZI, Commissioner of AND COSTS Social Security, 15 Defendant. [ECF No. 23] 16 17 18 19
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27 1 Before the Court is the parties’ Joint Motion for the Award and Payment of Attorney 2 Fees and Expenses Pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412(d), and 3 Costs Pursuant to 28 U.S.C. § 1920 (the “Joint Motion”). ECF No. 23. The Court 4 previously ordered the parties to file supplemental briefing on the Joint Motion, which they 5 timely did on December 19, 2022. ECF No. 25. Upon due consideration of both the initial 6 and supplemental briefing, and for the reasons set forth below, the Court GRANTS the 7 Joint Motion. 8 I. BACKGROUND 9 The underlying action involves Plaintiff’s appeal of the Social Security 10 Administration’s denial of his application for disability insurance benefits at the agency 11 level. ECF No. 1. On September 26, 2022, the Court issued an Order on the parties’ Cross- 12 Motions for Summary Judgment, reversing the final decision of the Commissioner of 13 Social Security and remanding the action for further proceedings. ECF No. 22. 14 On December 14, 2022, the parties filed the instant motion. ECF No. 23. The parties 15 jointly request that Plaintiff receive an award of attorney fees and expenses in the amount 16 of $9,400.00 under the Equal Access to Justice Act, 28 U.S.C. § 2412(d) (“EAJA”), and 17 costs in the amount of $402.00 under 28 U.S.C. § 1920. Id. at 2. After the Court ordered 18 supplemental briefing, the parties submitted a time sheet showing that five attorneys at the 19 Osterhout Berger Disability Law firm completed a total of 7.2 hours of work at $217.54 20 per hour (the EAJA rate for 2021) and 44.3 hours of work at $231.49 (the EAJA rate for 21 2022), for a total of $11,796.19. ECF No. 25-1. In their supplemental briefing, the parties 22 explain that Plaintiff’s attorneys agreed to reduce their total EAJA request to $9,400.00 for 23 legal services rendered and costs in the amount of $402.00 for the filing fee. ECF No. 25 24 at 3. Therefore, the parties’ Joint Motion reflects the discounted amount as agreed by the 25 parties. 26 II. THRESHOLD ISSUE OF TIMELINESS 27 According to the EAJA, an application for fees must be filed “within thirty days of 1 and not appealable . . . .” 28 U.S.C. § 2412(d)(2)(G). The Ninth Circuit has held that the 2 EAJA’s 30-day filing period does not begin to run until after the 60-day appeal period in 3 Federal Rule of Appellate Procedure 4(a).1 Hoa Hong Van v. Barnhart, 483 F.3d 600, 612 4 (9th Cir. 2007). 5 Here, the parties filed the motion for EAJA fees on December 14, 2022, 79 days 6 after judgment was entered on September 26, 2022 and 19 days after the 60-day appeal 7 period ended. Accordingly, the Joint Motion is timely. 8 III. DISCUSSION 9 Under the EAJA, a litigant is entitled to attorney fees and costs if: “(1) he is the 10 prevailing party; (2) the government fails to show that its position was substantially 11 justified or that special circumstances make an award unjust; and (3) the requested fees and 12 costs are reasonable.” Carbonell v. I.N.S., 429 F.3d 894, 898 (9th Cir. 2005). See also 28 13 U.S.C. § 2412(a), (d). The Court will address these elements in turn. 14 A. Prevailing party 15 A plaintiff is a prevailing party if she “has ‘succeeded on any significant issue in 16 litigation which achieve[d] some of the benefit . . . sought in bringing suit.’” Ulugalu v. 17 Berryhill, No. 17cv1087-GPC-JLB, 2018 WL 2012330, at *2 (S.D. Cal. Apr. 30, 2018) 18 (quoting Schaefer, 509 U.S. at 302). Here, Plaintiff is the prevailing party because the Court 19 granted his summary judgment motion on appeal, reversed the final decision of the 20 Commissioner of Social Security denying his application for disability insurance benefits, 21 and remanded the action for further proceedings at the administrative level. ECF No. 22. 22 \\ 23 \\ 24 25 26 1 Federal Rule of Appellate Procedure 4(a) provides that a “notice of appeal may be filed 27 by any party within 60 days after entry of the judgment or order appealed from” if one of the parties is the United States or a United States officer sued in an official capacity. Fed. 1 B. Substantial justification 2 If the Commissioner were to oppose Plaintiff’s request for EAJA fees, the 3 government would the burden of proving that its position, both in the underlying 4 administrative proceedings and in the subsequent litigation, was substantially justified 5 under 28 U.S.C. 2412(d)(1)(A). Meier v. Colvin, 727 F.3d 867, 870 (9th Cir. 2013). Here, 6 the parties have stipulated to the EAJA fee amount, and explain that the stipulation 7 “constitutes a compromise settlement of Plaintiff’s request for EAJA attorney fees and 8 costs[.]” ECF No. 23 at 2. Although Defendant’s stipulation does not constitute an 9 admission of liability on its part, the compromise nature of the request is sufficient to find 10 the second element met, given that “Defendant has stipulated to the attorney[] fees and 11 does not argue that the prevailing party’s position was substantially unjustified.” Krebs v. 12 Berryhill, 16cv3096-JLS-BGS, 2018 WL 3064346, at *2 (S.D. Cal. June 21, 2018); see 13 also Black v. Berryhill, No. 18cv1673-JM-LL, 2019 WL 2436393, at *1 (S.D. Cal. June 14 11, 2019) (finding the second element met because, “in light of the joint nature of the 15 parties’ request and the court’s prior order remanding this action, the government has not 16 shown that its position was substantially justified.”). Accordingly, the Court finds no basis 17 to deny the EAJA fee request pursuant to § 2412(d)(1)(A). 18 C. Reasonableness of Hours 19 The Court finds the 51.5 total hours billed by Plaintiff’s counsel to be reasonable 20 under 28 U.S.C. § 2412(d), although, notably, the number exceeds the typical range of 20- 21 40 hours billed in social security appeals. See Costa v. Comm’r of SSA, 690 F.3d 1132, 22 1136 (9th Cir. 2012) (noting “[m]any district courts have noted that twenty to forty hours 23 is the range most often requested and granted in social security cases”); Stearns v. Colvin, 24 No. 3:14-CV-05611 JRC, 2016 WL 730301, at *5 (W.D. Wash. Feb. 24, 2016) (collecting 25 cases to establish that the typical number of hours reported for counsel in a social security 26 case ranged from 18-40 hours).
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DARREN JEFFREY C., Case No.: 3:21-cv-01012-AHG
12 Plaintiff, ORDER GRANTING JOINT 13 v. MOTION FOR AWARD AND PAYMENT OF ATTORNEY FEES 14 KILOLO KIJAKAZI, Commissioner of AND COSTS Social Security, 15 Defendant. [ECF No. 23] 16 17 18 19
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27 1 Before the Court is the parties’ Joint Motion for the Award and Payment of Attorney 2 Fees and Expenses Pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412(d), and 3 Costs Pursuant to 28 U.S.C. § 1920 (the “Joint Motion”). ECF No. 23. The Court 4 previously ordered the parties to file supplemental briefing on the Joint Motion, which they 5 timely did on December 19, 2022. ECF No. 25. Upon due consideration of both the initial 6 and supplemental briefing, and for the reasons set forth below, the Court GRANTS the 7 Joint Motion. 8 I. BACKGROUND 9 The underlying action involves Plaintiff’s appeal of the Social Security 10 Administration’s denial of his application for disability insurance benefits at the agency 11 level. ECF No. 1. On September 26, 2022, the Court issued an Order on the parties’ Cross- 12 Motions for Summary Judgment, reversing the final decision of the Commissioner of 13 Social Security and remanding the action for further proceedings. ECF No. 22. 14 On December 14, 2022, the parties filed the instant motion. ECF No. 23. The parties 15 jointly request that Plaintiff receive an award of attorney fees and expenses in the amount 16 of $9,400.00 under the Equal Access to Justice Act, 28 U.S.C. § 2412(d) (“EAJA”), and 17 costs in the amount of $402.00 under 28 U.S.C. § 1920. Id. at 2. After the Court ordered 18 supplemental briefing, the parties submitted a time sheet showing that five attorneys at the 19 Osterhout Berger Disability Law firm completed a total of 7.2 hours of work at $217.54 20 per hour (the EAJA rate for 2021) and 44.3 hours of work at $231.49 (the EAJA rate for 21 2022), for a total of $11,796.19. ECF No. 25-1. In their supplemental briefing, the parties 22 explain that Plaintiff’s attorneys agreed to reduce their total EAJA request to $9,400.00 for 23 legal services rendered and costs in the amount of $402.00 for the filing fee. ECF No. 25 24 at 3. Therefore, the parties’ Joint Motion reflects the discounted amount as agreed by the 25 parties. 26 II. THRESHOLD ISSUE OF TIMELINESS 27 According to the EAJA, an application for fees must be filed “within thirty days of 1 and not appealable . . . .” 28 U.S.C. § 2412(d)(2)(G). The Ninth Circuit has held that the 2 EAJA’s 30-day filing period does not begin to run until after the 60-day appeal period in 3 Federal Rule of Appellate Procedure 4(a).1 Hoa Hong Van v. Barnhart, 483 F.3d 600, 612 4 (9th Cir. 2007). 5 Here, the parties filed the motion for EAJA fees on December 14, 2022, 79 days 6 after judgment was entered on September 26, 2022 and 19 days after the 60-day appeal 7 period ended. Accordingly, the Joint Motion is timely. 8 III. DISCUSSION 9 Under the EAJA, a litigant is entitled to attorney fees and costs if: “(1) he is the 10 prevailing party; (2) the government fails to show that its position was substantially 11 justified or that special circumstances make an award unjust; and (3) the requested fees and 12 costs are reasonable.” Carbonell v. I.N.S., 429 F.3d 894, 898 (9th Cir. 2005). See also 28 13 U.S.C. § 2412(a), (d). The Court will address these elements in turn. 14 A. Prevailing party 15 A plaintiff is a prevailing party if she “has ‘succeeded on any significant issue in 16 litigation which achieve[d] some of the benefit . . . sought in bringing suit.’” Ulugalu v. 17 Berryhill, No. 17cv1087-GPC-JLB, 2018 WL 2012330, at *2 (S.D. Cal. Apr. 30, 2018) 18 (quoting Schaefer, 509 U.S. at 302). Here, Plaintiff is the prevailing party because the Court 19 granted his summary judgment motion on appeal, reversed the final decision of the 20 Commissioner of Social Security denying his application for disability insurance benefits, 21 and remanded the action for further proceedings at the administrative level. ECF No. 22. 22 \\ 23 \\ 24 25 26 1 Federal Rule of Appellate Procedure 4(a) provides that a “notice of appeal may be filed 27 by any party within 60 days after entry of the judgment or order appealed from” if one of the parties is the United States or a United States officer sued in an official capacity. Fed. 1 B. Substantial justification 2 If the Commissioner were to oppose Plaintiff’s request for EAJA fees, the 3 government would the burden of proving that its position, both in the underlying 4 administrative proceedings and in the subsequent litigation, was substantially justified 5 under 28 U.S.C. 2412(d)(1)(A). Meier v. Colvin, 727 F.3d 867, 870 (9th Cir. 2013). Here, 6 the parties have stipulated to the EAJA fee amount, and explain that the stipulation 7 “constitutes a compromise settlement of Plaintiff’s request for EAJA attorney fees and 8 costs[.]” ECF No. 23 at 2. Although Defendant’s stipulation does not constitute an 9 admission of liability on its part, the compromise nature of the request is sufficient to find 10 the second element met, given that “Defendant has stipulated to the attorney[] fees and 11 does not argue that the prevailing party’s position was substantially unjustified.” Krebs v. 12 Berryhill, 16cv3096-JLS-BGS, 2018 WL 3064346, at *2 (S.D. Cal. June 21, 2018); see 13 also Black v. Berryhill, No. 18cv1673-JM-LL, 2019 WL 2436393, at *1 (S.D. Cal. June 14 11, 2019) (finding the second element met because, “in light of the joint nature of the 15 parties’ request and the court’s prior order remanding this action, the government has not 16 shown that its position was substantially justified.”). Accordingly, the Court finds no basis 17 to deny the EAJA fee request pursuant to § 2412(d)(1)(A). 18 C. Reasonableness of Hours 19 The Court finds the 51.5 total hours billed by Plaintiff’s counsel to be reasonable 20 under 28 U.S.C. § 2412(d), although, notably, the number exceeds the typical range of 20- 21 40 hours billed in social security appeals. See Costa v. Comm’r of SSA, 690 F.3d 1132, 22 1136 (9th Cir. 2012) (noting “[m]any district courts have noted that twenty to forty hours 23 is the range most often requested and granted in social security cases”); Stearns v. Colvin, 24 No. 3:14-CV-05611 JRC, 2016 WL 730301, at *5 (W.D. Wash. Feb. 24, 2016) (collecting 25 cases to establish that the typical number of hours reported for counsel in a social security 26 case ranged from 18-40 hours). However, the Costa court made clear that “it is also an 27 abuse of discretion to apply a de facto policy limiting social security claimants to twenty 1 how many hours are reasonable to spend on a specific case “will always depend on case- 2 specific factors including, among others, the complexity of the legal issues, the procedural 3 history, the size of the record, and when counsel was retained.” 690 F.3d at 1136. 4 Here, Plaintiff’s case was particularly complex, with an administrative record of 5 over 1800 pages, as well as cross-motions for summary judgment covering four separate 6 issues on appeal. See ECF Nos. 7, 8, 17, 18. Significantly, Plaintiff’s counsel achieved a 7 favorable result for their client by winning a reversal of the Commissioner’s denial of 8 benefits, and, as the Supreme Court explained in the seminal case on attorney fee awards, 9 “the extent of a plaintiff’s success is a crucial factor in determining the proper amount of 10 an award of attorney’s fees[.]” Hensley v. Eckerhart, 461 U.S. 424, 440 (1983); see also 11 Jawad v. Barnhart, 370 F. Supp. 2d 1077, 1080 (S.D. Cal. 2005) (relying on this directive 12 from Hensley in finding that 53 hours billed by the plaintiff’s counsel in a social security 13 appeal was “reasonable in light of the relative complexity of this social security appeal and 14 the level of success [counsel] achieved for Plaintiff.”). Cf. Johnson v. Colvin, No. 15 12CV1877-WQH-DHB, 2014 WL 3014875, at *3–4 (S.D. Cal. July 2, 2014) (finding it 16 was reasonable for the plaintiff’s counsel to spend 55 hours in a social security case, 17 although the case did not present novel issues, because the “case was somewhat 18 complex[,]” the administrative record was 1,034 pages, and plaintiff’s counsel briefed a 19 total of 79 pages on the cross-motions for summary judgment, the report and 20 recommendation, and the EAJA motion). 21 Additionally, “courts should generally defer to the ‘winning lawyer’s professional 22 judgment as to how much time he was required to spend on the case.’” Costa, 690 F.3d at 23 1136 (quoting Moreno v. City of Sacramento, 534 F.3d 1106, 1112–13 (9th Cir. 2008)). 24 Therefore, the Court will not question counsel’s judgment that the hours expended by both 25 Plaintiffs’ counsel were necessary to achieve a favorable result in this case.2 26
27 2 The Court further notes that the stipulated fee amount requested of $9,400 represents a 1 D. Reasonableness of Hourly Rate 2 The EAJA provides that the Court may award reasonable attorney fees “based upon 3 prevailing market rates for the kind and quality of the services furnished,” but “attorney 4 fees shall not be awarded in excess of $125 per hour unless the court determines that an 5 increase in the cost of living or a special factor, such as the limited availability of qualified 6 attorneys for the proceedings involved, justifies a higher fee.” 28 U.S.C. § 2412(d)(2)(A). 7 As noted, the statutory maximum EAJA rate for work performed in 2021 in the Ninth 8 Circuit, factoring in increases in the cost of living, was $217.54, and the statutory 9 maximum EAJA rate for the first half of 2022 was $231.49. See United States Courts for 10 the Ninth Circuit, Statutory Maximum Rates Under the Equal Access to Justice Act, 11 https://www.ca9.uscourts.gov/attorneys/statutory-maximum-rates/ (last visited Dec. 20, 12 2022); see also Thangaraja v. Gonzales, 428 F.3d 870, 876 (9th Cir. 2005) (“EAJA 13 provides for an upward adjustment of the $125 rate contained in the statute, based on cost- 14 of-living increases”) (citing 28 U.S.C. § 2412(d)(2)(A)); see, e.g., Black, 2019 WL 15 2436393, at *1 (considering the Ninth Circuit’s hourly EAJA rate a reasonable rate). 16 Consistent with the Ninth Circuit’s hourly EAJA rates, Plaintiff’s counsel billed at a rate 17 of $217.54 per hour for work performed in 2021, and at a rate of $231.49 for work 18 performed in 2022. ECF No. 25-1. As such, the Court finds that the hourly rate billed by 19 counsel is reasonable. 20 E. Assignment of Rights to Counsel 21 The parties jointly request that “[f]ees and costs shall be made payable to Plaintiff, 22 but if the Department of the Treasury determines that Plaintiff does not owe a federal debt, 23 then the government shall cause the payment of fees and costs to be made directly to 24 25 26 equivalent to 10.35 hours billed at the 2022 EAJA rate of $231.49. Therefore, the request 27 before the Court is comparable to a request for reimbursement of approximately 41 total hours of attorney work, which is closer to the standard range of hours billed by plaintiffs’ 1 [Plaintiff’s counsel Karl Osterhout], pursuant to the assignment executed by Plaintiff.” 2 ECF No. 23 at 2; see also ECF No. 25-2 (agreement signed by Plaintiff stating “I hereby 3 assign my rights in any fees payable to me under the EAJA to my attorneys at [Osterhout 4 Berger Disability Law, LLC]”). 5 The Supreme Court has held that “a § 2412(d) fees award is payable to the litigant 6 and is therefore subject to a Government offset to satisfy a pre-existing debt that the litigant 7 owes the United States.” Astrue v. Ratliff, 560 U.S. 586, 588–89 (2010). Nonetheless, 8 “district courts have recognized that Ratliff does not prevent payment of a fee award 9 directly to the attorney where there has been a valid assignment and the plaintiff does not 10 owe a debt to the government.” Ulugalu, 2018 WL 2012330, at *4–5 (reviewing Plaintiff’s 11 assignment agreement and ordering that the EAJA fees be paid to plaintiff’s counsel, 12 subject to any administrative offset due to outstanding federal debt); Bell v. Berryhill, No. 13 16cv809-MMC, 2018 WL 452110, at *5 (N.D. Cal. Jan. 17, 2018) (same); Blackwell v. 14 Astrue, No. CIV-08-1454-EFB, 2011 WL 1077765, at *4–5 (E.D. Cal. Mar. 21, 2011) 15 (same); see also Calderon v. Astrue, No. 08cv1015-GSA, 2010 WL 4295583, at *8 (E.D. 16 Cal. Oct. 21, 2010) (“Plaintiff, as the prevailing litigant, would normally be awarded the 17 fees described above, subject to any offset for applicable government debts. Defendant, 18 however, seems to be content to permit payment to Plaintiff’s counsel if Plaintiff does not 19 have any qualifying government debt . . . . This Court finds the government’s position to 20 be reasonable and will therefore permit payment to Plaintiff’s counsel provided Plaintiff 21 has no government debt that requires offset”). 22 Here, Plaintiff assigned his right to EAJA fees to his attorneys at the law firm of 23 Osterhout Berger Disability Law, LLC. ECF No. 25-2. Accordingly, if Plaintiff has no 24 federal debt that is subject to offset, the award of fees and costs may be paid directly to 25 attorney Karl Osterhout pursuant to the assignment agreement and in accordance with the 26 parties’ Joint Motion. 27 \\ 1 CONCLUSION 2 Based on the foregoing, the Court hereby ORDERS that: 3 1. The parties’ Joint Motion for the Award and Payment of Attorney Fees and 4 || Expenses Pursuant to the Equal Access to Justice Act (ECF No. 23) is GRANTED; 5 2. Plaintiff is awarded attorney fees under the EAJA in the amount of $9,400.00 6 costs under 28 U.S.C. § 1920 in the amount of $402.00; and 7 3. Pursuant to Astrue v. Ratliff, 560 U.S. 586, 588-89 (2010), any payment shall 8 ||be made payable to Plaintiff and delivered to Plaintiff's counsel, unless Plaintiff does not 9 || owe a federal debt. If the United States Department of the Treasury determines that Plaintiff 10 not owe a federal debt, the government shall accept Plaintiff's assignment of EAJA 11 || fees and pay fees directly to Karl Osterhout at the law firm of Osterhout Disability Law, 12 |/LLC. 13 IT IS SO ORDERED. 14 || Dated: December 20, 2022 5 _Abiomt. Xl Honorable Allison H. Goddard 16 United States Magistrate Judge 17 18 19 20 21 22 23 24 25 26 27 28