Sepulveda v. Kijakazi

• Court: District Court, S.D. California
• Decided: September 2, 2022
• Docket: 3:22-cv-00350
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ELIZABETH S., Case No.: 22-cv-00350-JLB

12 Plaintiff, ORDER GRANTING JOINT 13 v. MOTION FOR THE AWARD AND PAYMENT OF ATTORNEY’S 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) 16

17 [ECF No. 22] 18 19 20 Before the Court is a joint motion for an order awarding Plaintiff $2,220.00 in 21 attorney’s fees and expenses pursuant to the Equal Access to Justice Act (“EAJA”), 28 22 U.S.C. § 2412(d). (ECF No. 22.) For the following reasons, the joint motion is 23 GRANTED. 24 I. BACKGROUND 25 The underlying action involves Plaintiff’s appeal of the Social Security 26 Administration’s denial of her application for Social Security Disability and Supplemental 27 Security Income benefits. (ECF No. 1.) After the Commissioner of Social Security filed 28 the administrative record, the Court directed the parties to engage in good faith settlement 1 discussions and file a joint notice of settlement, if appropriate, no later than July 29, 2022. 2 (ECF No. 16.) On July 26, 2022, the parties filed a Status Report requesting additional 3 time to meet and confer. (ECF No. 17.) On August 2, 2022, the parties filed a joint motion 4 for voluntary remand to the agency for further administrative proceedings pursuant to 5 sentence four of 42 U.S.C. § 405(g) and entry of judgment. (ECF No. 19.) On August 3, 6 2020, the Court granted the joint motion and remanded the matter to the agency for further 7 administrative proceedings pursuant to sentence four of 42 U.S.C. § 405(g). (ECF No. 20.) 8 The Clerk of Court was directed to enter final judgment in favor of Plaintiff, and against 9 Defendant, reversing the final decision of the Commissioner. (Id.) Judgment was entered 10 on August 3, 2022. (ECF No. 21.) 11 II. DISCUSSION 12 A litigant is “entitled to attorney’s fees and costs if: (1) [s]he is the prevailing party; 13 (2) the government fails to show that its position was substantially justified or that special 14 circumstances make an award unjust; and (3) the requested fees and costs are reasonable.” 15 Carbonell v. I.N.S., 429 F.3d 894, 898 (9th Cir. 2005) (citing Perez–Arellano v. Smith, 279 16 F.3d 791, 793 (9th Cir. 2002)); see also 28 U.S.C. § 2412(d)(1)(A). 17 The prevailing party is eligible to seek attorney’s fees within thirty days of final 18 judgment in the action. 28 U.S.C. § 2412(d)(1)(B). “A sentence four remand becomes a 19 final judgment, for purposes of attorneys’ fees claims brought pursuant to the EAJA, upon 20 expiration of the time for appeal.” Akopyan, 296 F.3d at 854 (citation omitted) (citing 21 Schalala v. Schaefer, 509 U.S. 292, 297 (1993)). Under Federal Rule of Appellate 22 Procedure 4(a)(1)(B), the time for appeal expires sixty days after entry of judgment if one 23 of the parties is a United States officer sued in an official capacity. Therefore, a motion 24 for attorney’s fees filed after a sentence four remand is timely if filed within thirty days 25 after Rule 4(a)’s sixty-day appeal period has expired. Hoa Hong Van v. Barnhart, 483 26 F.3d 600, 602 (9th Cir. 2007). 27 Here, the Court finds the parties’ joint motion is timely and that Plaintiff is entitled 28 to EAJA fees. First, the Court remanded this case for further administrative proceedings 1 pursuant to sentence four of 42 U.S.C. § 405(g) and entered judgment for Plaintiff. (ECF 2 Nos. 20; 21.) Plaintiff is therefore the prevailing party, for “[a] plaintiff who obtains a 3 sentence four remand,” even when further administrative review is ordered, “is considered 4 a prevailing party for purposes of attorneys’ fees.” Akopyan v. Barnhart, 296 F.3d 852, 5 854 (9th Cir. 2002) (citing Schaefer, 509 U.S. at 297–98, 301–02); see also Roland S. v. 6 Saul, No. 3:20-CV-01068-AHG, 2021 WL 4081567, at *2 (S.D. Cal. Sept. 7, 2021) 7 (finding the plaintiff to be the prevailing party where the case was remanded pursuant to 8 sentence four of 42 U.S.C. § 405(g) based on a joint motion for voluntary remand). 9 Second, the Commissioner makes no argument that her position was substantially 10 justified. See Meier v. Colvin, 727 F.3d 867, 870 (9th Cir. 2013) (“It is the government’s 11 burden to show that its position was substantially justified.”). Rather, the Commissioner 12 filed a joint motion to voluntarily remand this case for further administrative proceedings 13 and the instant fee request comes to the Court by way of a joint motion. See Ulugalu v. 14 Berryhill, No. 17-CV-01087-GPC-JLB, 2018 WL 2012330, at *3 (S.D. Cal. Apr. 30, 2018) 15 (finding the Commissioner did not demonstrate substantial justification for her position 16 where she filed a voluntary stipulation for remand and the matter was referred to an 17 administrative law judge to make a new determination as to the plaintiff’s disability). 18 Finally, Plaintiff’s requested fees are reasonable. Plaintiff’s counsel declares that he 19 spent 8 hours at an hourly rate of $231.39 and a paralegal spent 3.2 hours at an hourly rate 20 of $150.00 working on this case, for a discount total of $2,200.00.1 (ECF No. 22-1.) The 21 hours are reasonable in light of Plaintiff’s results in the case. See Hensley v. Eckerhart, 22 461 U.S. 424, 435 (1983) (“Where a plaintiff has obtained excellent results, his attorney 23 should recover a fully compensatory fee.”); see also Dana F. v. Kijakazi, No. 20-CV- 24 01548-AHG, 2022 WL 542881, at *3 (S.D. Cal. Feb. 23, 2022) (finding 40 hours billed by 25

26 27 1 In Plaintiff’s itemization of fees, the total fee was calculated to be $2,331.12. (ECF No. 22-1 at 2.) However, in the parties’ joint motion, the total fee requested was $2,200.00. 28 1 || plaintiffs counsel a reasonable number of hours); Guzman v. Comm'r of Soc. Sec., No. 20- 2 || CV-0468-KJN, 2021 WL 2534462, at *4 (E.D. Cal. June 21, 2021) (finding a total of 38 3 ||hours for counsel spent prosecuting the Social Security appeal to be reasonable in a case 4 ||where, as here, the parties agreed to a sentence-four remand). Notably, this case was 5 ||resolved early in Plaintiff's favor. See Costa v. Comm’r of Soc. Sec. Admin., 690 F.3d 6 || 1132, 1136 (9th Cir. 2012) (noting that “[m]Jany district courts have noted that twenty to 7 hours is the range most often requested and granted in social security cases”). 8 The hourly rate is also reasonable. Counsel’s hourly rate of $231.39 is less than the 9 || Ninth Circuit’s EAJA hourly rate. See Statutory Maximum Rates Under the Equal Access 10 Justice Act, USS. Courts for the Ninth Circuit, 11 || □□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□ (last visited September 12 2022); see also Roland S., 2021 WL 4081567, at *3 (finding hourly rates consistent with 13 || the Ninth Circuit’s EAJA rates to be reasonable). 14 Hl. CONCLUSION 15 For the foregoing reasons, the Court GRANTS the parties’ joint motion (ECF No. 16 and awards Plaintiff fees in the amount of $2,200.00, as authorized by 28 U.S.C. 17 || § 2412(d) subject to the terms of the joint motion. 18 IT IS SO ORDERED. 19 || Dated: September 2, 2022 20 i U Burhan 21 n. Jill L. Burkhardt 59 ited States Magistrate Judge 23 24 25 26 27 28