Elsaesser v. Kijakazi

• Court: District Court, S.D. California
• Decided: July 5, 2022
• Docket: 3:21-cv-00244
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT 11 SOUTHERN DISTRICT OF CALIFORNIA 12 13 LYNNMARIE E., Case No.: 21-cv-00244-JLB

14 Plaintiff, ORDER GRANTING AMENDED 15 v. JOINT MOTION FOR THE AWARD AND PAYMENT OF ATTORNEY’S 16 KILOLO KIJAKAZI, Acting FEES AND EXPENSES PURSUANT Commissioner of Social Security, 17 TO THE EQUAL ACCESS TO Defendant. JUSTICE ACT, 28 U.S.C. § 2412(d) 18

19 [ECF No. 26] 20 21 22 Before the Court is an amended joint motion for an order awarding Plaintiff 23 $7,350.00 in attorney’s fees pursuant to the Equal Access to Justice Act (“EAJA”), 28 24 U.S.C. § 2412(d). (ECF No. 26.) For the following reasons, the amended joint motion is 25 GRANTED. 26 I. BACKGROUND 27 The underlying action involves Plaintiff’s appeal of the Social Security 28 Administration’s denial of her applications for Social Security Disability and Supplemental 1 Security Income benefits. (ECF No. 1.) After the Commissioner of Social Security filed 2 the administrative record, the Court directed the parties to engage in good faith settlement 3 discussions and file a joint notice of settlement, if appropriate, no later than 4 October 22, 2021. (ECF No. 12.) On October 22, 2021, the parties filed a Status Report 5 informing the Court that the case did not settle. (ECF No. 13.) However, on April 1, 2022, 6 the parties filed a joint motion for voluntary remand to the agency for further administrative 7 proceedings pursuant to sentence four of 42 U.S.C. § 405(g) and entry of judgment. (ECF 8 No. 21.) That same day, the Court granted the joint motion and remanded the matter to the 9 agency for further administrative proceedings pursuant to sentence four of 42 U.S.C. 10 § 405(g). (ECF No. 22.) The Clerk of Court was directed to enter final judgment in favor 11 of Plaintiff, and against Defendant, reversing the final decision of the Commissioner. (Id.) 12 Judgment was entered on April 1, 2022. (ECF No. 23.) 13 II. DISCUSSION 14 A litigant is “entitled to attorney’s fees and costs if: (1) [s]he is the prevailing party; 15 (2) the government fails to show that its position was substantially justified or that special 16 circumstances make an award unjust; and (3) the requested fees and costs are reasonable.” 17 Carbonell v. I.N.S., 429 F.3d 894, 898 (9th Cir. 2005) (citing Perez–Arellano v. Smith, 279 18 F.3d 791, 793 (9th Cir. 2002)); see also 28 U.S.C. § 2412(d)(1)(A). 19 The prevailing party is eligible to seek attorney’s fees within thirty days of final 20 judgment in the action. 28 U.S.C. § 2412(d)(1)(B). “A sentence four remand becomes a 21 final judgment, for purposes of attorneys’ fees claims brought pursuant to the EAJA, upon 22 expiration of the time for appeal.” Akopyan, 296 F.3d at 854 (citation omitted) (citing 23 Schalala v. Schaefer, 509 U.S. 292, 297 (1993)). Under Federal Rule of Appellate 24 Procedure 4(a)(1)(B), the time for appeal expires sixty days after entry of judgment if one 25 of the parties is a United States officer sued in an official capacity. Therefore, a motion 26 for attorney’s fees filed after a sentence four remand is timely if filed within thirty days 27 after Rule 4(a)’s sixty-day appeal period has expired. Hoa Hong Van v. Barnhart, 483 28 F.3d 600, 602 (9th Cir. 2007). 1 Here, the Court finds the parties’ amended joint motion is timely and that Plaintiff 2 is entitled to EAJA fees. First, the Court remanded this case for further administrative 3 proceedings pursuant to sentence four of 42 U.S.C. § 405(g) and entered judgment for 4 Plaintiff. (ECF Nos. 22; 23.) Plaintiff is therefore the prevailing party, for “[a] plaintiff 5 who obtains a sentence four remand,” even when further administrative review is ordered, 6 “is considered a prevailing party for purposes of attorneys’ fees.” Akopyan v. Barnhart, 7 296 F.3d 852, 854 (9th Cir. 2002) (citing Schaefer, 509 U.S. at 297–98, 301–02); see also 8 Roland S. v. Saul, No. 3:20-CV-01068-AHG, 2021 WL 4081567, at *2 (S.D. Cal. Sept. 7, 9 2021) (finding the plaintiff to be the prevailing party where the case was remanded 10 pursuant to sentence four of 42 U.S.C. § 405(g) based on a joint motion for voluntary 11 remand). 12 Second, the Commissioner makes no argument that her position was substantially 13 justified. See Meier v. Colvin, 727 F.3d 867, 870 (9th Cir. 2013) (“It is the government’s 14 burden to show that its position was substantially justified.”). Rather, the Commissioner 15 filed a joint motion to voluntarily remand this case for further administrative proceedings 16 and the instant fee request comes to the Court by way of a joint motion. See Ulugalu v. 17 Berryhill, No. 17-CV-01087-GPC-JLB, 2018 WL 2012330, at *3 (S.D. Cal. Apr. 30, 2018) 18 (finding the Commissioner did not demonstrate substantial justification for her position 19 where she filed a voluntary stipulation for remand and the matter was referred to an 20 administrative law judge to make a new determination as to the plaintiff’s disability). 21 Finally, Plaintiff’s requested fees are reasonable. Plaintiff’s counsel declares that 22 she and one other attorney in her law firm spent 34.75 hours at an hourly rate of $217.54 23 working on this case, for a discount total of $7,350.00.1 (ECF No. 26-3.) The hours are 24 reasonable in light of Plaintiff’s results in the case. See Hensley v. Eckerhart, 461 U.S. 25

26 27 1 In Plaintiff’s itemization of fees, the total fee was calculated to be $7,559.52. (ECF No. 26-3 at 2.) However, in the parties’ amended joint motion, the total fee requested was 28 1 435 (1983) (“Where a plaintiff has obtained excellent results, his attorney should 2 || recover a fully compensatory fee.”); see also Dana F. v. Kijakazi, No. 20-CV-01548-AHG, 3 WL 542881, at *3 (S.D. Cal. Feb. 23, 2022) (finding 40 hours billed by plaintiffs 4 counsel a reasonable number of hours); Guzman v. Comm'r of Soc. Sec., No. 20-CV-0468- 5 || KJN, 2021 WL 2534462, at *4 (E.D. Cal. June 21, 2021) (finding a total of 38 hours for 6 || counsel spent prosecuting the Social Security appeal to be reasonable in a case where, as 7 the parties agreed to a sentence-four remand). Notably, this case was resolved early 8 Plaintiff's favor. See Costa v. Comm’r of Soc. Sec. Admin., 690 F.3d 1132, 1136 (9th 9 || Cir. 2012) (noting that “[m]any district courts have noted that twenty to forty hours is the 10 |/range most often requested and granted in social security cases”). 11 The hourly rate is also reasonable. Counsel’s hourly rate of $217.54 is equal to the 12 || Ninth Circuit’s EAJA hourly rate. See Statutory Maximum Rates Under the Equal Access 13 ||to Justice Act, USS. Courts for the Ninth Circuit, 14 || https://www.ca9.uscourts.gov/attorneys/statutory-maximum-rates/ (last visited July 5, 15 2022); see also Roland S., 2021 WL 4081567, at *3 (finding hourly rates consistent with 16 || the Ninth Circuit’s EAJA rates to be reasonable). 17 HI. CONCLUSION 18 For the foregoing reasons, the Court GRANTS the parties’ amended joint motion 19 ||(ECF No. 26) and awards Plaintiff fees in the amount of $7,350.00, as authorized by 28 20 U.S.C. § 2412 subject to the terms of the Joint Motion. 21 IT IS SO ORDERED. 22 Dated: July 5, 2022 23 i U Bur handih 24 n. Jill L. Burkhardt 95 ited States Magistrate Judge 26 27 28