1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 CHERYL KYLES MENDEZ, Case No.: 21cv1523-LL-KSC
12 Plaintiff, ORDER GRANTING JOINT 13 v. MOTION FOR ATTORNEY FEES AND COSTS 14 KILOLO KIJAKAZI, Acting
Commissioner of Social Security, 15 [ECF No. 14] Defendant. 16 17 18 Plaintiff Cheryl Kyles Mendez originally brought this case against Kilolo Kijakazi, 19 the Acting Commissioner of Social Security, on August 27, 2021, seeking judicial review 20 of the denial of her application for a period of disability and disability insurance benefits. 21 ECF No. 1. On September 6, 2022, the Court granted the parties’ joint motion to remand 22 this action to the Social Security Administration (“the Agency”) and vacate the denial of 23 Plaintiff’s application pursuant to sentence four of 42 U.S.C. § 405(g). ECF No. 13. On 24 March 14, 2023, the parties filed the instant Joint Motion for the Award and Payment of 25 Attorney Fees and Expenses Pursuant to the Equal Access to Justice Act, 28 U.S.C. 26 § 2412(d) and Costs Pursuant to 28 U.S.C. § 1920. ECF No. 14. For the reasons set forth 27 below, the Court GRANTS the parties’ Joint Motion. 28 1 I. LEGAL STANDARD 2 Under the Equal Access to Justice Act (“EAJA”), a litigant is “entitled to attorney’s 3 fees and costs if: (1) [s]he is the prevailing party; (2) the government fails to show that its 4 position was substantially justified or that special circumstances make an award unjust; 5 and (3) the requested fees and costs are reasonable.” Carbonell v. I.N.S., 429 F.3d 894, 898 6 (9th Cir. 2005) (citing Perez-Arellano v. Smith, 279 F.3d 791, 793 (9th Cir. 2002)); see 7 also 28 U.S.C. § 2412(d)(1)(A). The prevailing party must file an EAJA application within 8 thirty days of final judgment in the action and submit an itemized statement showing the 9 actual time spent and the rate that the fees and expenses were computed. 28 U.S.C. 10 § 2412(d)(1)(B). Fees and expenses awardable under EAJA include reasonable attorney 11 fees, but “attorney fees shall not be awarded in excess of $125 per hour unless the court 12 determines that an increase in the cost of living or a special factor . . . justifies a higher 13 fee.” 28 U.S.C. 2412(d)(2)(A). 14 II. DISCUSSION 15 A. Timeliness 16 “In sentence four cases, the filing period begins after the final judgment . . . is entered 17 by the court and the appeal period has run[.]” Melkonyan v. Sullivan, 501 U.S. 89, 102 18 (1991); see also 28 U.S.C. § 2412(d)(1)(B). EAJA requires “that a ‘final judgment’ be 19 entered in the civil action[.]” Id. (citing 28 U.S.C. § 2412(d)(1)(B)). And Rule 58 of the 20 Federal Rules of Civil Procedure requires that a judgment be set out in a separate document. 21 See Fed. R. Civ. P. 58(a) (enumerating certain exceptions). “If a separate document is 22 required, and one is not filed, judgment is entered automatically 150 days after the court 23 enters an order disposing of a case.” Kingsbury v. United States, 900 F.3d 1147, 1149 (9th 24 Cir. 2018) (per curiam) (citing Fed. R. Civ. P. 58(c)(2)(B)). The appeal period begins “after 25 entry of the judgment or order” as dictated by Rule 58. Fed. R. App. P. 4(a)(1)(B), 26 4(a)(7)(A)(ii). Furthermore, a litigant has sixty days to appeal against an agency of the 27 United States, and such period is provided even where the judgment is unopposed by the 28 agency. See Van v. Barnhart, 483 F.3d 600, 611 (9th Cir. 2007) (citing Shalala v. Shaefer, 1 509 U.S. 292, 298, 302-03 (1993)); Fed. R. App. P. 4(a)(1)(B)(ii). Where a separate 2 document of judgment has not been entered, the Court still looks to the time period under 3 which the order granting remand remains appealable, and calculates the filing period for 4 an application for EAJA fees from the end of the period for appeal. See Schaefer, 509 U.S. 5 at 303, 303 n.6 (1993) (holding that a sentence four remand order did constitute a judgment, 6 and that failure to follow the formalities of Rule 58 was an error which a party seeking an 7 untimeliness defense had the burden to address). In other words, the thirty-day period to 8 file an EAJA fee application begins to run at the conclusion of the appeal period. Van, 483 9 F.3d at 611 (citing 28 U.S.C. § 2412(d)(1)(B); Akopyan v. Barnhart, 296 F.3d 852, 856-57 10 (9th Cir. 2002); and Fed. R. App. P. 4(a)). Therefore, where no separate judgment has been 11 filed following a sentence four remand order, as it occurred in this case, an EAJA fee 12 application is timely if filed within 240 days after the entry of the remand order. See, e.g., 13 Hodges-Williams v. Barnhart, 221 F.R.D. 595, 598 (N.D. Ill. 2004). Between the entry of 14 the Court’s remand order on September 6, 2022 [ECF No. 13], and the parties’ Joint Motion 15 for fees under EAJA on March 14, 2023 [ECF No. 14], 189 days elapsed. As such, the 16 Joint Motion is timely. 17 B. Prevailing Party 18 “A plaintiff who obtains a sentence four remand” under 42 U.S.C. § 405(g), even 19 when further administrative review is ordered, “is considered a prevailing party for 20 purposes of attorneys’ fees.” Akopyan, 296 F.3d at 854 (citing Shaefer, 509 U.S. at 297- 21 02). Accordingly, because the Court previously remanded Plaintiff’s case to the Agency 22 under sentence four of 42 U.S.C. § 405(g), Plaintiff is considered a prevailing party under 23 EAJA for the purposes of the instant Joint Motion. 24 C. Substantial Justification 25 The government bears the burden of proving that its position, both in the underlying 26 administrative proceedings and in the subsequent litigation, was substantially justified. 27 Meier v.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 CHERYL KYLES MENDEZ, Case No.: 21cv1523-LL-KSC
12 Plaintiff, ORDER GRANTING JOINT 13 v. MOTION FOR ATTORNEY FEES AND COSTS 14 KILOLO KIJAKAZI, Acting
Commissioner of Social Security, 15 [ECF No. 14] Defendant. 16 17 18 Plaintiff Cheryl Kyles Mendez originally brought this case against Kilolo Kijakazi, 19 the Acting Commissioner of Social Security, on August 27, 2021, seeking judicial review 20 of the denial of her application for a period of disability and disability insurance benefits. 21 ECF No. 1. On September 6, 2022, the Court granted the parties’ joint motion to remand 22 this action to the Social Security Administration (“the Agency”) and vacate the denial of 23 Plaintiff’s application pursuant to sentence four of 42 U.S.C. § 405(g). ECF No. 13. On 24 March 14, 2023, the parties filed the instant Joint Motion for the Award and Payment of 25 Attorney Fees and Expenses Pursuant to the Equal Access to Justice Act, 28 U.S.C. 26 § 2412(d) and Costs Pursuant to 28 U.S.C. § 1920. ECF No. 14. For the reasons set forth 27 below, the Court GRANTS the parties’ Joint Motion. 28 1 I. LEGAL STANDARD 2 Under the Equal Access to Justice Act (“EAJA”), a litigant is “entitled to attorney’s 3 fees and costs if: (1) [s]he is the prevailing party; (2) the government fails to show that its 4 position was substantially justified or that special circumstances make an award unjust; 5 and (3) the requested fees and costs are reasonable.” Carbonell v. I.N.S., 429 F.3d 894, 898 6 (9th Cir. 2005) (citing Perez-Arellano v. Smith, 279 F.3d 791, 793 (9th Cir. 2002)); see 7 also 28 U.S.C. § 2412(d)(1)(A). The prevailing party must file an EAJA application within 8 thirty days of final judgment in the action and submit an itemized statement showing the 9 actual time spent and the rate that the fees and expenses were computed. 28 U.S.C. 10 § 2412(d)(1)(B). Fees and expenses awardable under EAJA include reasonable attorney 11 fees, but “attorney fees shall not be awarded in excess of $125 per hour unless the court 12 determines that an increase in the cost of living or a special factor . . . justifies a higher 13 fee.” 28 U.S.C. 2412(d)(2)(A). 14 II. DISCUSSION 15 A. Timeliness 16 “In sentence four cases, the filing period begins after the final judgment . . . is entered 17 by the court and the appeal period has run[.]” Melkonyan v. Sullivan, 501 U.S. 89, 102 18 (1991); see also 28 U.S.C. § 2412(d)(1)(B). EAJA requires “that a ‘final judgment’ be 19 entered in the civil action[.]” Id. (citing 28 U.S.C. § 2412(d)(1)(B)). And Rule 58 of the 20 Federal Rules of Civil Procedure requires that a judgment be set out in a separate document. 21 See Fed. R. Civ. P. 58(a) (enumerating certain exceptions). “If a separate document is 22 required, and one is not filed, judgment is entered automatically 150 days after the court 23 enters an order disposing of a case.” Kingsbury v. United States, 900 F.3d 1147, 1149 (9th 24 Cir. 2018) (per curiam) (citing Fed. R. Civ. P. 58(c)(2)(B)). The appeal period begins “after 25 entry of the judgment or order” as dictated by Rule 58. Fed. R. App. P. 4(a)(1)(B), 26 4(a)(7)(A)(ii). Furthermore, a litigant has sixty days to appeal against an agency of the 27 United States, and such period is provided even where the judgment is unopposed by the 28 agency. See Van v. Barnhart, 483 F.3d 600, 611 (9th Cir. 2007) (citing Shalala v. Shaefer, 1 509 U.S. 292, 298, 302-03 (1993)); Fed. R. App. P. 4(a)(1)(B)(ii). Where a separate 2 document of judgment has not been entered, the Court still looks to the time period under 3 which the order granting remand remains appealable, and calculates the filing period for 4 an application for EAJA fees from the end of the period for appeal. See Schaefer, 509 U.S. 5 at 303, 303 n.6 (1993) (holding that a sentence four remand order did constitute a judgment, 6 and that failure to follow the formalities of Rule 58 was an error which a party seeking an 7 untimeliness defense had the burden to address). In other words, the thirty-day period to 8 file an EAJA fee application begins to run at the conclusion of the appeal period. Van, 483 9 F.3d at 611 (citing 28 U.S.C. § 2412(d)(1)(B); Akopyan v. Barnhart, 296 F.3d 852, 856-57 10 (9th Cir. 2002); and Fed. R. App. P. 4(a)). Therefore, where no separate judgment has been 11 filed following a sentence four remand order, as it occurred in this case, an EAJA fee 12 application is timely if filed within 240 days after the entry of the remand order. See, e.g., 13 Hodges-Williams v. Barnhart, 221 F.R.D. 595, 598 (N.D. Ill. 2004). Between the entry of 14 the Court’s remand order on September 6, 2022 [ECF No. 13], and the parties’ Joint Motion 15 for fees under EAJA on March 14, 2023 [ECF No. 14], 189 days elapsed. As such, the 16 Joint Motion is timely. 17 B. Prevailing Party 18 “A plaintiff who obtains a sentence four remand” under 42 U.S.C. § 405(g), even 19 when further administrative review is ordered, “is considered a prevailing party for 20 purposes of attorneys’ fees.” Akopyan, 296 F.3d at 854 (citing Shaefer, 509 U.S. at 297- 21 02). Accordingly, because the Court previously remanded Plaintiff’s case to the Agency 22 under sentence four of 42 U.S.C. § 405(g), Plaintiff is considered a prevailing party under 23 EAJA for the purposes of the instant Joint Motion. 24 C. Substantial Justification 25 The government bears the burden of proving that its position, both in the underlying 26 administrative proceedings and in the subsequent litigation, was substantially justified. 27 Meier v. Colvin, 727 F.3d 867, 870 (9th Cir. 2013). In the instant case, the parties have 28 stipulated to the EAJA amount, and explain that “[t]his stipulation constitutes a 1 compromise settlement of Mendez’s request for EAJA attorney fees, and does not 2 constitute an admission of liability on the part of Defendant under the EAJA or otherwise.” 3 Because Defendant previously filed a joint stipulation to remand this case under sentence 4 four, now stipulates to the award of attorney fees, and has not argued that its position was 5 substantially justified, the Court finds that the Agency has not met its burden to show that 6 its position was substantially justified. 7 D. Reasonableness of Fees and Costs 8 EAJA provides that the Court may award reasonable attorney fees “based upon 9 prevailing market rates for the kind and quality of the services furnished,” but limits that 10 fee to $125 per hour unless the Court determines that the increase in a cost of living or a 11 special factor justifies a higher fee. 28 U.S.C. § 2412(d)(2)(A); see also Thangaraja v. 12 Gonzales, 428 F.3d 870, 876 (9th Cir. 2005) (“EAJA provides for an upward adjustment 13 of the $125 rate contained in the statute, based on cost-of-living increases.”). Accordingly, 14 the Ninth Circuit has set its own statutory maximum EAJA rates, factoring in annual 15 increases in the cost of living. The statutory maximum rate for work performed in 2022 in 16 the Ninth Circuit was $234.95, and $217.54 for work performed in 2021. See United States 17 Courts for the Ninth Circuit, Statutory Maximum Rates Under the Equal Access to Justice 18 Act, https://www.ca9.uscourts.gov/attorneys/statutory-maximum-rates/ (last visited April 19 17, 2023). A prevailing party under EAJA may also recover reasonable paralegal fees, and 20 the Court may approve paralegal fees at prevailing market rates. See Nadarajah v. Holder, 21 569 F.3d 906, 918 (9th Cir. 2009). For instance, other judges in this district have found 22 $130 to be a reasonable hourly rate for paralegal work in social security cases. See, e.g., 23 Toni Lynn B v. Saul, No. 3:19-cv-925-AHG, 2020 U.S. Dist. LEXIS 124308, at *6-7 (S.D. 24 Cal. July 15, 2020); Smith v. Berryhill, No. 3:17-cv-2108-CAB-RNB, 2019 U.S. Dist. 25 LEXIS 89885, at *5 (S.D. Cal. Mar. 14, 2019). The itemized statement of work filed by 26 Plaintiff’s counsel calculates attorney fees based on a $217.54 hourly rate for 4.3 hours of 27 work performed in 2021 and 2022 by counsel, paralegal fees based on a $143 hourly rate 28 for 2.3 hours of work performed in 2021 and 2022, and $17.13 in expenses, for a total of 1 $1,281.45. The Court finds the rates billed by Plaintiff’s counsel to be reasonable. Further, 2 the Court does not question counsel’s judgment that the hours she expended were necessary 3 to achieve a favorable result for her client in this case. See Costa v. Comm’r of Soc. Sec. 4 Admin., 690 F.3d 1132, 1136 (9th Cir. 2012) (per curiam) (noting that courts generally 5 defer to counsel’s professional judgment as to how much time was required to spend on 6 the case). Accordingly, the Court finds that the parties’ requested amount of $1,200.00 in 7 attorney fees and expenses [ECF No. 14 at 1] is reasonable. 8 E. Assignment of Rights to Counsel 9 The parties request that “[f]ees shall be made payable to Mendez, but if the 10 Department of the Treasury determines that Mendez does not owe a federal debt, then the 11 government shall cause the payment of fees, expenses and costs to be made directly to Law 12 Office of Lawrence D. Rohlfing, Inc., CPC, pursuant to the assignment executed by 13 Mendez.” ECF No. 14 at 2. In relevant part, the signed retainer agreement between Plaintiff 14 and her counsel states that she will “endorse such documents as are needed to pay Attorney 15 any amounts under the EAJA and assigns such fee awards to Attorney.” ECF No. 14-1 ¶ 4. 16 An EAJA fee award “is payable to the litigant and is therefore subject to a 17 Government offset to satisfy a pre-existing debt that the litigant owes the United States.” 18 Astrue v. Ratliff, 560 U.S. 586, 589, 597 (2010). Pursuant to Astrue, if the Department of 19 the Treasury confirms that Plaintiff does not owe a federal debt, then the government shall 20 cause payment of EAJA fees to be made directly to the Law Office of Lawrence D. 21 Rohlfing and delivered to Monica Perales, Plaintiff’s counsel, pursuant to Plaintiff’s 22 assignment. 23 \\\ 24 \\\ 25 \\\ 26 \\\ 27 \\\ 28 \\\ 1 rl. CONCLUSION 2 In accordance with 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. 14] is GRANTED. 5 2. Plaintiff is awarded attorney fees under the Equal Access to Justice Act in the 6 |}amount of $1,200.00; and 7 3. Pursuant to Astrue, any payment shall be made payable to Plaintiff and 8 || delivered to Plaintiff’s counsel, unless Plaintiff does not owe a federal debt. If the United 9 ||States Department of Treasury determines that Plaintiff does not owe a federal debt, the 10 || government shall accept Plaintiff's assignment of EAJA fees and pay fees directly to 11 || Monica Perales. 12 IT IS SO ORDERED. 13 ||Dated: April 19, 2023 NO 14 eS 15 Honorable Linda Lopez 16 United States District Judge 17 18 19 20 21 22 23 24 25 26 27 28