Martin v. Kijakazi

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DONALD M., Case No.: 20-cv-01736-JLB

12 Plaintiff, ORDER GRANTING JOINT 13 v. MOTION FOR THE AWARD AND PAYMENT OF ATTORNEY FEES 14 KILOLO KIJAKAZI, Acting AND EXPENSES PURSUANT TO Commissioner of Social Security, 15 THE EQUAL ACCESS TO JUSTICE Defendant. ACT, 28 U.S.C. § 2412(d), AND 16 COSTS PURSUANT TO 28 U.S.C. § 17 1920

18 [ECF No. 25] 19 20 21 On September 4, 2020, Plaintiff Donald M. (“Plaintiff”) filed a complaint seeking 22 judicial review of the denial of his application for social security disability benefits by the 23 Commissioner of Social Security (the “Commissioner”). (ECF No. 1.) The Commissioner 24 filed the administrative record on May 25, 2021. (ECF No. 14.) On August 2, 2021, 25 Plaintiff filed a merits brief. (ECF No. 17.) 26 The parties filed a joint motion for voluntary remand pursuant to sentence four of 27 42 U.S.C. § 405(g) and entry of judgment on November 4, 2021. (ECF No. 22.) On 28 November 4, 2021, the Court granted the joint motion and remanded the matter for further 1 administrative proceedings pursuant to sentence four of 42 U.S.C. § 405(g), and judgment 2 was entered the following day. (ECF Nos. 23, 24.) 3 Now before the Court is a joint motion for the award and payment of attorney fees 4 and expenses pursuant to the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d), 5 and costs pursuant to 28 U.S.C. § 1920. (ECF No. 25.) The parties jointly ask the Court 6 to award Plaintiff attorney fees and expenses in the amount of $3,400.00 and costs in the 7 amount of $400.00. (Id. at 1.) This amount represents compensation for all legal services 8 rendered on behalf of Plaintiff by counsel in connection with this action. (Id.) 9 A litigant is entitled to attorney’s fees under the EAJA if: “(1) he is the prevailing 10 party; (2) the government fails to show that its position was substantially justified or that 11 special circumstances make an award unjust; and (3) the requested fees and costs are 12 reasonable.” Carbonell v. I.N.S., 429 F.3d 894, 898 (9th Cir. 2005) (citing Perez–Arellano 13 v. Smith, 279 F.3d 791, 793 (9th Cir. 2002)); see also 28 U.S.C. § 2412(d)(1)(A). “A 14 plaintiff who obtains a sentence four remand” under 42 U.S.C. § 405(g), even when further 15 administrative review is ordered, “is considered a prevailing party for purposes of 16 attorneys’ fees.” Akopyan v. Barnhart, 296 F.3d 852, 854 (9th Cir. 2002) (citing Schalala 17 v. Schaefer, 509 U.S. 292, 297–98, 301–02 (1993)). 18 The prevailing party is eligible to seek attorney’s fees within thirty days of final 19 judgment in the action. 28 U.S.C. § 2412(d)(1)(B). “A sentence four remand becomes a 20 final judgment, for purposes of attorneys’ fees claims brought pursuant to the EAJA, upon 21 expiration of the time for appeal.” Akopyan, 296 F.3d at 854 (citation omitted) (citing 22 Schaefer, 509 U.S. at 297). Under Federal Rule of Appellate Procedure 4(a)(1)(B), the 23 time for appeal expires sixty days after entry of judgment if one of the parties is a 24 United States officer sued in an official capacity. Therefore, a motion for attorney’s fees 25 filed after a sentence four remand is timely if filed within thirty days after Rule 4(a)’s sixty- 26 day appeal period has expired. Hoa Hong Van v. Barnhart, 483 F.3d 600, 602 (9th Cir. 27 2007). 28 /// 1 Here, the Court finds that the parties’ joint motion is timely, Plaintiff is the prevailing 2 || party in this action, the Commissioner has not met her burden of showing her position was 3 ||substantially justified or that special circumstances make an award unjust, and the 4 || stipulated amount of fees is reasonable.' Accordingly, the Court GRANTS the parties’ 5 motion and AWARDS Plaintiff $3,400.00 in attorney fees and expenses pursuant to 6 EAJA and $400.00 in costs under 28 U.S.C. § 1920. 7 IT IS SO ORDERED. 8 ||Dated: December 14, 2021 i U Bur khendr 10 n. Jill L. Burkhardt ited States Magistrate Judge 12 13 14 15 16 17 18 19 20 21 22 23

25 6 ! See Eryberto H.. v. Kijakazi, 20-cv-02427-JLB (S.D. Cal.), ECF No. 18 (finding an award of $4,600 in attorney’s fees and expenses reasonable after parties jointly moved to 27 ||remand upon Plaintiff filing a merits brief); Guillermo G. v. Kijakazi, 20-cv-01167-JLB 28 (S.D. Cal), ECF No. 17 (finding recovery of the $400 filing fee to commence the action appropriate); see also ECF No. 9 ($400 filing fee paid in this case).