1 2 3 4 5 6 7 10 11 CRAIG H., Case No.: 22-cv-00800-AJB-LR Plaintiff, 12 ORDER GRANTING JOINT MOTION v. FOR AWARD AND PAYMENT OF 13 ATTORNEY’S FEES KILOLO KIJAKAZI, Acting 14 Commissioner of Social Security, (Doc. No. 21) 15 Defendant.
16 Presently before the Court is the parties’ Joint Motion for the Award and Payment 17 of Attorney Fees and Expenses Pursuant to the Equal Access to Justice Act, 28 U.S.C. 18 § 2412(d) (the “Joint Motion”). (Doc. No. 21.) The Court decides the matter without oral 19 argument pursuant to Civil Local Rule 7.1(d)(1). For the reasons set forth, the Court 20 GRANTS the Joint Motion. 21 I. BACKGROUND 22 On June 1, 2022, Plaintiff filed a complaint, seeking judicial review of the 23 Commissioner’s decision to deny his claim for benefits. (Doc. No. 1.) Thereafter, the 24 parties filed a Joint Motion for Judicial Review on February 13, 2023. (Doc. No. 16.) 25 Magistrate Judge Lupe Rodriguez, Jr. filed a Report and Recommendation (“R&R”) 26 on July 21, 2023, recommending that the Commissioner’s decision be reversed, and the 27 action be remanded for further administrative proceedings. (Doc. No. 17.) Upon review of 28 1 the R&R and receiving no objections from the parties, the Court adopted Magistrate Judge 2 Rodriguez, Jr.’s R&R in its entirety. (Doc. No. 18.) 3 On October 16, 2023, the parties filed the instant motion. (Doc. No. 21.) The parties 4 jointly request that Plaintiff receive an award of attorney fees and expenses in the amount 5 of $10,005.71 under the Equal Access to Justice Act, 28 U.S.C. § 2412(d) (“EAJA”), and 6 no costs under 28 U.S.C. § 1920. (Id. at 2.) The parties submitted a time sheet showing that 7 one attorney at Yancey Law, PC completed a total of 35.7 hours of work at $234.95 per 8 hour (the EAJA rate for 2022) and 8.6 hours of work at $242.78 (the EAJA rate for 2023), 9 for a total of $10,475.61. (Doc. No. 21-1.) 11 According to the EAJA, an application for fees must be filed “within thirty days of 12 final judgment.” 28 U.S.C. § 2412(d)(1)(B). A final judgment is “a judgment that is final 13 and not appealable . . . .” 28 U.S.C. § 2412(d)(2)(G). The Ninth Circuit has held that the 14 EAJA’s 30-day filing period does not begin to run until after the 60-day appeal period in 15 Federal Rule of Appellate Procedure 4(a). Hoa Hong Van v. Barnhart, 483 F.3d 600, 612 16 (9th Cir. 2007). 17 Here, the parties filed the motion for EAJA fees on October 16, 2023, 60 days after 18 judgment was entered on August 18, 2023 and the same day the 60-day appeal period 19 ended. Accordingly, the Joint Motion is timely. 21 Under the EAJA, a litigant is entitled to attorney fees and costs if: “(1) he is the 22 prevailing party; (2) the government fails to show that its position was substantially 23 justified or that special circumstances make an award unjust; and (3) the requested fees and 24 costs are reasonable.” Carbonell v. I.N.S., 429 F.3d 894, 898 (9th Cir. 2005); see also 28 25 U.S.C. § 2412(a), (d). The Court will address these elements in turn. 26 A. Prevailing Party 27 A plaintiff is a prevailing party if he “has ‘succeeded on any significant issue in 28 litigation which achieve[d] some of the benefit . . . sought in bringing suit.’” Ulugalu v. 1 Berryhill, No. 17cv1087-GPC-JLB, 2018 WL 2012330, at *2 (S.D. Cal. Apr. 30, 2018) 2 (quoting Shalala v. Schaefer, 509 U.S. 292, 302 (1993)). Here, Plaintiff is the prevailing 3 party because the Court reversed the final decision of the Commissioner of Social Security 4 denying his application for disability insurance benefits and remanded the action for further 5 proceedings at the administrative level. (Doc. No. 18.) 6 B. Substantial Justification 7 If the Commissioner were to oppose Plaintiff’s request for EAJA fees, the 8 government would bear the burden of proving that its position, both in the underlying 9 administrative proceedings and in the subsequent litigation, was substantially justified 10 under 28 U.S.C. 2412(d)(1)(A). Meier v. Colvin, 727 F.3d 867, 870 (9th Cir. 2013). Here, 11 the parties have stipulated to the EAJA fee amount, and explain that the stipulation 12 “constitutes a compromise settlement of Plaintiff’s request for EAJA attorney fees[.]” 13 (Doc. No. 21 at 2.) Although Defendant’s stipulation does not constitute an admission of 14 liability on its part, the compromise nature of the request is sufficient to find the second 15 element met, given that “Defendant has stipulated to the attorney[] fees and does not argue 16 that the prevailing party’s position was substantially unjustified.” Krebs v. Berryhill, 17 16cv3096-JLS-BGS, 2018 WL 3064346, at *2 (S.D. Cal. June 21, 2018); see also Black v. 18 Berryhill, No. 18cv1673-JM-LL, 2019 WL 2436393, at *1 (S.D. Cal. June 11, 2019) 19 (finding the second element met because, “in light of the joint nature of the parties’ request 20 and the court’s prior order remanding this action, the government has not shown that its 21 position was substantially justified.”). Accordingly, the Court finds no basis to deny the 22 EAJA fee request pursuant to § 2412(d)(1)(A). 23 C. Reasonableness of Hours 24 The Court finds the 44.3 total hours billed by Plaintiff’s counsel to be reasonable 25 under 28 U.S.C. § 2412(d). See Costa v. Comm’r of SSA, 690 F.3d 1132, 1136 (9th Cir. 26 2012) (noting “[m]any district courts have noted that twenty to forty hours is the range 27 most often requested and granted in social security cases”); Stearns v. Colvin, No. 3:14- 28 CV-05611 JRC, 2016 WL 730301, at *5 (W.D. Wash. Feb. 24, 2016) (collecting cases to 1 establish that the typical number of hours reported for counsel in a social security case 2 ranged from 18–40 hours). 3 Here, Plaintiff’s counsel achieved a favorable result for their client by winning a 4 reversal of the Commissioner’s denial of benefits, and, as the Supreme Court explained in 5 the seminal case on attorney fee awards, “the extent of a plaintiff’s success is a crucial 6 factor in determining the proper amount of an award of attorney’s fees[.]” Hensley v. 7 Eckerhart, 461 U.S. 424, 440 (1983); see also Jawad v. Barnhart, 370 F. Supp. 2d 1077, 8 1080 (S.D. Cal. 2005) (relying on this directive from Hensley in finding that 53 hours billed 9 by the plaintiff’s counsel in a social security appeal was “reasonable in light of the relative 10 complexity of this social security appeal and the level of success [counsel] achieved for 11 Plaintiff.”). Cf. Johnson v. Colvin, No.
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1 2 3 4 5 6 7 10 11 CRAIG H., Case No.: 22-cv-00800-AJB-LR Plaintiff, 12 ORDER GRANTING JOINT MOTION v. FOR AWARD AND PAYMENT OF 13 ATTORNEY’S FEES KILOLO KIJAKAZI, Acting 14 Commissioner of Social Security, (Doc. No. 21) 15 Defendant.
16 Presently before the Court is the parties’ Joint Motion for the Award and Payment 17 of Attorney Fees and Expenses Pursuant to the Equal Access to Justice Act, 28 U.S.C. 18 § 2412(d) (the “Joint Motion”). (Doc. No. 21.) The Court decides the matter without oral 19 argument pursuant to Civil Local Rule 7.1(d)(1). For the reasons set forth, the Court 20 GRANTS the Joint Motion. 21 I. BACKGROUND 22 On June 1, 2022, Plaintiff filed a complaint, seeking judicial review of the 23 Commissioner’s decision to deny his claim for benefits. (Doc. No. 1.) Thereafter, the 24 parties filed a Joint Motion for Judicial Review on February 13, 2023. (Doc. No. 16.) 25 Magistrate Judge Lupe Rodriguez, Jr. filed a Report and Recommendation (“R&R”) 26 on July 21, 2023, recommending that the Commissioner’s decision be reversed, and the 27 action be remanded for further administrative proceedings. (Doc. No. 17.) Upon review of 28 1 the R&R and receiving no objections from the parties, the Court adopted Magistrate Judge 2 Rodriguez, Jr.’s R&R in its entirety. (Doc. No. 18.) 3 On October 16, 2023, the parties filed the instant motion. (Doc. No. 21.) The parties 4 jointly request that Plaintiff receive an award of attorney fees and expenses in the amount 5 of $10,005.71 under the Equal Access to Justice Act, 28 U.S.C. § 2412(d) (“EAJA”), and 6 no costs under 28 U.S.C. § 1920. (Id. at 2.) The parties submitted a time sheet showing that 7 one attorney at Yancey Law, PC completed a total of 35.7 hours of work at $234.95 per 8 hour (the EAJA rate for 2022) and 8.6 hours of work at $242.78 (the EAJA rate for 2023), 9 for a total of $10,475.61. (Doc. No. 21-1.) 11 According to the EAJA, an application for fees must be filed “within thirty days of 12 final judgment.” 28 U.S.C. § 2412(d)(1)(B). A final judgment is “a judgment that is final 13 and not appealable . . . .” 28 U.S.C. § 2412(d)(2)(G). The Ninth Circuit has held that the 14 EAJA’s 30-day filing period does not begin to run until after the 60-day appeal period in 15 Federal Rule of Appellate Procedure 4(a). Hoa Hong Van v. Barnhart, 483 F.3d 600, 612 16 (9th Cir. 2007). 17 Here, the parties filed the motion for EAJA fees on October 16, 2023, 60 days after 18 judgment was entered on August 18, 2023 and the same day the 60-day appeal period 19 ended. Accordingly, the Joint Motion is timely. 21 Under the EAJA, a litigant is entitled to attorney fees and costs if: “(1) he is the 22 prevailing party; (2) the government fails to show that its position was substantially 23 justified or that special circumstances make an award unjust; and (3) the requested fees and 24 costs are reasonable.” Carbonell v. I.N.S., 429 F.3d 894, 898 (9th Cir. 2005); see also 28 25 U.S.C. § 2412(a), (d). The Court will address these elements in turn. 26 A. Prevailing Party 27 A plaintiff is a prevailing party if he “has ‘succeeded on any significant issue in 28 litigation which achieve[d] some of the benefit . . . sought in bringing suit.’” Ulugalu v. 1 Berryhill, No. 17cv1087-GPC-JLB, 2018 WL 2012330, at *2 (S.D. Cal. Apr. 30, 2018) 2 (quoting Shalala v. Schaefer, 509 U.S. 292, 302 (1993)). Here, Plaintiff is the prevailing 3 party because the Court reversed the final decision of the Commissioner of Social Security 4 denying his application for disability insurance benefits and remanded the action for further 5 proceedings at the administrative level. (Doc. No. 18.) 6 B. Substantial Justification 7 If the Commissioner were to oppose Plaintiff’s request for EAJA fees, the 8 government would bear the burden of proving that its position, both in the underlying 9 administrative proceedings and in the subsequent litigation, was substantially justified 10 under 28 U.S.C. 2412(d)(1)(A). Meier v. Colvin, 727 F.3d 867, 870 (9th Cir. 2013). Here, 11 the parties have stipulated to the EAJA fee amount, and explain that the stipulation 12 “constitutes a compromise settlement of Plaintiff’s request for EAJA attorney fees[.]” 13 (Doc. No. 21 at 2.) Although Defendant’s stipulation does not constitute an admission of 14 liability on its part, the compromise nature of the request is sufficient to find the second 15 element met, given that “Defendant has stipulated to the attorney[] fees and does not argue 16 that the prevailing party’s position was substantially unjustified.” Krebs v. Berryhill, 17 16cv3096-JLS-BGS, 2018 WL 3064346, at *2 (S.D. Cal. June 21, 2018); see also Black v. 18 Berryhill, No. 18cv1673-JM-LL, 2019 WL 2436393, at *1 (S.D. Cal. June 11, 2019) 19 (finding the second element met because, “in light of the joint nature of the parties’ request 20 and the court’s prior order remanding this action, the government has not shown that its 21 position was substantially justified.”). Accordingly, the Court finds no basis to deny the 22 EAJA fee request pursuant to § 2412(d)(1)(A). 23 C. Reasonableness of Hours 24 The Court finds the 44.3 total hours billed by Plaintiff’s counsel to be reasonable 25 under 28 U.S.C. § 2412(d). See Costa v. Comm’r of SSA, 690 F.3d 1132, 1136 (9th Cir. 26 2012) (noting “[m]any district courts have noted that twenty to forty hours is the range 27 most often requested and granted in social security cases”); Stearns v. Colvin, No. 3:14- 28 CV-05611 JRC, 2016 WL 730301, at *5 (W.D. Wash. Feb. 24, 2016) (collecting cases to 1 establish that the typical number of hours reported for counsel in a social security case 2 ranged from 18–40 hours). 3 Here, Plaintiff’s counsel achieved a favorable result for their client by winning a 4 reversal of the Commissioner’s denial of benefits, and, as the Supreme Court explained in 5 the seminal case on attorney fee awards, “the extent of a plaintiff’s success is a crucial 6 factor in determining the proper amount of an award of attorney’s fees[.]” Hensley v. 7 Eckerhart, 461 U.S. 424, 440 (1983); see also Jawad v. Barnhart, 370 F. Supp. 2d 1077, 8 1080 (S.D. Cal. 2005) (relying on this directive from Hensley in finding that 53 hours billed 9 by the plaintiff’s counsel in a social security appeal was “reasonable in light of the relative 10 complexity of this social security appeal and the level of success [counsel] achieved for 11 Plaintiff.”). Cf. Johnson v. Colvin, No. 12CV1877-WQH-DHB, 2014 WL 3014875, at *3– 12 4 (S.D. Cal. July 2, 2014) (finding it was reasonable for the plaintiff’s counsel to spend 55 13 hours in a social security case, although the case did not present novel issues, because the 14 “case was somewhat complex[,]” the administrative record was 1,034 pages, and plaintiff’s 15 counsel briefed a total of 79 pages on the cross-motions for summary judgment, the report 16 and recommendation, and the EAJA motion). 17 Additionally, “courts should generally defer to the ‘winning lawyer’s professional 18 judgment as to how much time he was required to spend on the case.’” Costa, 690 F.3d at 19 1136 (quoting Moreno v. City of Sacramento, 534 F.3d 1106, 1112–13 (9th Cir. 2008)). 20 Therefore, the Court will not question counsel’s judgment that the hours expended by both 21 Plaintiffs’ counsel were necessary to achieve a favorable result in this case. 22 D. Reasonableness of Hourly Rate 23 The EAJA provides that the Court may award reasonable attorney fees “based upon 24 prevailing market rates for the kind and quality of the services furnished,” but “attorney 25 fees shall not be awarded in excess of $125 per hour unless the court determines that an 26 increase in the cost of living or a special factor, such as the limited availability of qualified 27 attorneys for the proceedings involved, justifies a higher fee.” 28 U.S.C. § 2412(d)(2)(A). 28 As noted, the statutory maximum EAJA rate for work performed in 2022 in the Ninth 1 Circuit, factoring in increases in the cost of living, was $234.95, and the statutory 2 maximum EAJA rate for the first half of 2023 was $242.78. See United States Courts for 3 the Ninth Circuit, Statutory Maximum Rates Under the Equal Access to Justice Act, 4 https://www.ca9.uscourts.gov/attorneys/statutory-maximum-rates/ (last visited October 5 17, 2023); see also Thangaraja v. Gonzales, 428 F.3d 870, 876 (9th Cir. 2005) (“EAJA 6 provides for an upward adjustment of the $125 rate contained in the statute, based on cost- 7 of-living increases”) (citing 28 U.S.C. § 2412(d)(2)(A)); see, e.g., Black, 2019 WL 8 2436393, at *1 (considering the Ninth Circuit’s hourly EAJA rate a reasonable rate). 9 Consistent with the Ninth Circuit’s hourly EAJA rates, Plaintiff’s counsel billed at a rate 10 of $234.95 per hour for work performed in 2022, and at a rate of $242.78 for work 11 performed in 2023. (Doc. No. 21-1.) As such, the Court finds that the hourly rate billed by 12 counsel is reasonable. 13 E. Assignment of Rights to Counsel 14 The parties jointly request that “[f]ees shall be made payable to Plaintiff, but if the 15 Department of the Treasury determines that Plaintiff does not owe a federal debt, then the 16 government shall cause the payment of fees, expenses and costs to be made directly to 17 [Plaintiff’s counsel] Martha Yancey, pursuant to the assignment executed by Plaintiff.” 18 (Doc. No. 21 at 2; see also Doc. No. 21-2 (agreement signed by Plaintiff stating “I hereby 19 assign any entitlement that I may have to a fee under the Equal Access to Justice Act 20 (EAJA), 28 U.S.C. § 2412(d), to my attorney, Martha Yancey”).) 21 The Supreme Court has held that “a § 2412(d) fees award is payable to the litigant 22 and is therefore subject to a Government offset to satisfy a pre-existing debt that the litigant 23 owes the United States.” Astrue v. Ratliff, 560 U.S. 586, 588–89 (2010). Nonetheless, 24 “district courts have recognized that Ratliff does not prevent payment of a fee award 25 directly to the attorney where there has been a valid assignment and the plaintiff does not 26 owe a debt to the government.” Ulugalu, 2018 WL 2012330, at *4–5 (reviewing the 27 plaintiff’s assignment agreement and ordering that the EAJA fees be paid to plaintiff’s 28 counsel, subject to any administrative offset due to outstanding federal debt); Bell v. 1 Berryhill, No. 16cv809-MMC, 2018 WL 452110, at *5 (N.D. Cal. Jan. 17, 2018) (same); 2 Blackwell v. Astrue, No. CIV-08-1454-EFB, 2011 WL 1077765, at *4–5 (E.D. Cal. Mar. 3 21, 2011) (same); see also Calderon v. Astrue, No. 08cv1015-GSA, 2010 WL 4295583, at 4 *8 (E.D. Cal. Oct. 21, 2010) (“Plaintiff, as the prevailing litigant, would normally be 5 awarded the fees described above, subject to any offset for applicable government debts. 6 Defendant, however, seems to be content to permit payment to Plaintiff’s counsel if 7 Plaintiff does not have any qualifying government debt . . . . This Court finds the 8 government’s position to be reasonable and will therefore permit payment to Plaintiff’s 9 counsel provided Plaintiff has no government debt that requires offset”). 10 Here, Plaintiff assigned his right to EAJA fees to his attorney at the law firm of 11 Yancey Law, PC. (Doc. No. 21-2.) Accordingly, if Plaintiff has no federal debt that is 12 subject to offset, the award of fees and costs may be paid directly to attorney Martha 13 Yancey pursuant to the assignment agreement and in accordance with the parties’ Joint 14 Motion. 16 Based on the foregoing, the Court hereby ORDERS that: 17 1. The parties’ Joint Motion for the Award and Payment of Attorney Fees 18 Pursuant to the Equal Access to Justice Act, (Doc. No. 21), is GRANTED; 19 2. Plaintiff is awarded attorney fees under the EAJA in the amount of 20 $10,005.71; and 21 3. Pursuant to Astrue v. Ratliff, 560 U.S. 586, 588–89 (2010), any payment shall 22 be made payable to Plaintiff and delivered to Plaintiff’s counsel, unless Plaintiff does not 23 owe a federal debt. If the United States Department of the Treasury determines that Plaintiff 24 does not owe a federal debt, the government shall accept Plaintiff’s assignment of EAJA 25 // 26 // 27 // 28 // 1 ||} fees and pay fees directly to Martha Yancey at the law firm of Yancey Law, PC. 3 Dated: October 17, 2023
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