Politte v. Commissioner of Social Security

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DAVID A. P., Case No.: 22-CV-1665 JLS (DEB)

12 Plaintiff, ORDER GRANTING PLAINTIFF’S 13 v. MOTION FOR ATTORNEY’S FEES PURSUANT TO THE EQUAL 14 COMMISSIONER OF ACCESS TO JUSTICE ACT, SOCIAL SECURITY, 15 28 U.S.C. § 2412 Defendant. 16 (ECF No. 26) 17

18 Presently before the Court is Plaintiff David A. P.’s Motion for Attorney’s Fees 19 Pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412 (“Mot.,” ECF No. 26). Also 20 before the Court is Defendant Commissioner of Social Security’s Non-Opposition to 21 Plaintiff’s Motion (“Non-Opp’n,” ECF No. 28). Having considered the Motion and the 22 law, the Court GRANTS the Motion and AWARDS Plaintiff fees in the amount of 23 $4,390.20 and costs in the amount of $6.57. 24 BACKGROUND 25 On October 26, 2022, Plaintiff filed a Complaint requesting the Court reverse 26 Defendant’s decision denying Plaintiff disability insurance benefits or remand the case for 27 further administrative proceedings. See generally ECF No. 1. After the filing of the 28 Administrative Record but before the filing of a response to the Complaint, the Parties filed 1 a Stipulation to Voluntary Remand Pursuant to Sentence Four of 42 U.S.C. § 405(g) and 2 to Entry of Judgment, see ECF No. 24, which this Court approved, see ECF No. 25. 3 Plaintiff filed the present Motion on July 20, 2023. See Mot. The Court requested a 4 response from Defendant, see ECF No. 27, and Defendant’s Non-Opposition followed, see 5 Non-Opp’n. 6 LEGAL STANDARD 7 The Equal Access to Justice Act (“EAJA”) provides, in relevant part: 8 Except as otherwise specifically provided by statute, a court shall award to a prevailing party other than the United States fees and 9 other expenses, in addition to any costs awarded pursuant to 10 subsection (a), incurred by that party in any civil action (other than cases sounding in tort), including proceedings for judicial 11 review of agency action, brought by or against the United States 12 in any court having jurisdiction of that action, unless the court finds that the position of the United States was substantially 13 justified or that special circumstances make an award unjust. 14 15 28 U.S.C. § 2412(d)(1)(A). 16 The EAJA also permits an award of costs to the prevailing party in accordance with 17 28 U.S.C. § 1920. See 28 U.S.C. § 2412(a)(1). Pursuant to Civil Local Rule 54.1(b)(1), 18 “[i]t is the custom of the Court to allow certain items of costs not otherwise allowed or 19 prohibited by statute or by specific order,” including “[f]ees for service of process.” 20 ANALYSIS 21 “Under the EAJA, attorneys’ fees are to be awarded to a party winning a sentence- 22 four remand unless the Commissioner shows that his position with respect to the issue on 23 which the district court based its remand was ‘substantially justified.’” Ulugalu v. 24 Berryhill, No. 17-cv-1087-GPC-JLB, 2018 WL 2012330, at *2 (S.D. Cal. Apr. 30, 2018) 25 (quoting Lewis v. Barnhart, 281 F.3d 1081, 1083 (9th Cir. 2002)). Defendant does not 26 oppose the instant request for fees and costs, nor does Defendant argue that the Social 27 Security Administration’s position was substantially justified. See generally Non-Opp’n. 28 The Court thus finds that an award of fees is warranted here. 1 The quantum of fees awarded under the EAJA is based upon prevailing market rates 2 for the kind and quality of the services provided. 28 U.S.C. § 2412(d)(2)(A). Such fees, 3 however, shall not exceed $125.00 per hour “unless the court determines that an increase 4 in the cost of living or a special factor, such as the limited availability of qualified attorneys 5 for the proceedings involved, justifies a higher fee.” Id. § 2412(d)(2)(A)(ii). For 2022, the 6 Ninth Circuit’s statutory maximum rate under the EAJA, factoring in cost of living, was 7 $234.95; for the first half of 2023, the rate was $242.78. See United States Courts for the 8 Ninth Circuit, Statutory Maximum Rates Under the Equal Access to Justice Act, 9 https://www.ca9.uscourts.gov/attorneys/statutory-maximum-rates/ (last visited Aug. 3, 10 2023). 11 Here, Plaintiff requests fees for 11.2 hours of attorney work (2.1 hours at the hourly 12 rate of $234.95, totaling $493.40, and 9.1 hours at the hourly rate of $242.78, totaling 13 $2,209.30) in the total sum of $2,702.70. See Attorney’s Affirmation in Support of Fees 14 (“Affirm.,” ECF No. 26-2) ¶ 5. Plaintiff also requests fees for 13.5 hours of paralegal time 15 at the rate of $125.00 per hour, totaling $1,687.50. See id. ¶ 6. Combined, Plaintiff seeks 16 fees totaling $4,390.20. See id. The Court finds both the rates requested and the hours 17 expended to be reasonable. Cf. Ulugalu, 2018 WL 2012330, at *3–4 (approving award of 18 fees at the then-prevailing Ninth Circuit EAJA rate for 25.3 attorney hours and 9.9 19 paralegal hours worked). Further, Defendant has indicated its non-opposition to Plaintiff’s 20 request. See generally Non-Opp’n. Accordingly, the Court finds the fees requested by 21 Plaintiff reasonable and awardable. 22 Plaintiff further requests reimbursement of $6.57 for the certified mailing of the 23 summons and Complaint to the U.S. Marshal Service. See Affirm. ¶ 8. The Court finds 24 an award of costs in this amount, representing Plaintiff’s fees for service of process, 25 reasonable and awardable as well. See CivLR 54.1(b)(1). 26 CONCLUSION 27 Good cause appearing, the Court GRANTS Plaintiff’s Motion (ECF No. 26) and 28 AWARDS Plaintiff fees in the amount of $4,390.20 and costs in the amount of $6.57, 1 || subject to any offset allowed under the United States Department of the Treasury’s Offset 2 || Program as discussed in Astrue v. Ratliff, 560 U.S. 586, 598 (2010). 3 IT IS SO ORDERED. 4 ||Dated: August 11, 2023 psi L. Lo memaitice- 5 on. Janis L. Sammartino ‘ United States District Judge

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