5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 SANDRA LORRAINE RAMIREZ, Case No. 1:21-cv-00578-EPG 11 Plaintiff, ORDER GRANTING UNOPPOSED MOTION FOR ATTORNEY’S FEES PURSUANT TO 12 v. EQUAL JUSTICE ACT 28 U.S.C. § 2412(d) 13 COMMISSIONER OF SOCIAL (ECF No. 24). SECURITY, 14
15 Defendants.
16 17 On January 23, 2023, Attorney Jonathan Pena, counsel for Plaintiff Sandra Lorraine 18 Ramirez, filed a motion for an award of attorney’s fees under the Equal Access to Justice Act 19 (EAJA), 28 U.S.C. § 2412(d). (ECF No. 24). On January 24, 2023, the Court ordered the 20 Commissioner to file an opposition or statement of non-opposition to Plaintiff’s request for EAJA 21 fees by no later than February 22, 2023. (ECF No. 25). Plaintiff and the Commissioner of Social 22 Security were each served with a copy of the motion. (ECF No. 26; ECF No. 24, p. 7). Neither 23 Plaintiff nor the Commissioner have filed an objection or other response to the motion. 24 For the reasons set forth below, the motion for an award of attorney’s fees is GRANTED 25 in the amount of $9,205.98. 26 I. BACKGROUND 27 Plaintiff filed the complaint in this case on April 7, 2021. (ECF No. 1). The parties 28 1 consented to this case proceeding before the undersigned. (ECF No. 11). After Plaintiff filed her 2 opening brief, the parties’ filed a stipulation for voluntary remand pursuant to Sentence Four of 3 42 U.S.C. § 405(g). (ECF No. 20). On October 25, 2022, the Court issued an order approving the 4 parties’ stipulation and entering judgment in favor of Plaintiff. (ECF No. 22). This matter is now before the Court on Plaintiff’s counsel’s motion, seeking an award of 5 $9,205.98. (ECF No. 24, p.1). In support of this amount, counsel provides an itemized list of 6 hours billed. (ECF No. 24-1). Additionally, counsel requests that “[i]f the Plaintiff has no debt 7 registered with the Department of Treasury subject to offset that the fees be made payable to the 8 attorney” pursuant to the written fee agreement between Plaintiff and Plaintiff’s counsel. (Id. at 6; 9 see ECF No. 24-2). 10 II. DISCUSSION 11 The Equal Access to Justice Act provides: 12 Except as otherwise specifically provided by statute, a court shall award to a 13 prevailing party other than the United States fees and other expenses, in addition to any costs awarded pursuant to subsection (a), incurred by that party in any civil 14 action (other than cases sounding in tort), including proceedings for judicial review of agency action, brought by or against the United States in any court 15 having jurisdiction of that action, unless the court finds that the position of the United States was substantially justified or that special circumstances make an 16 award unjust. 17 28 U.S.C. §2412(d)(1)(A). 18 A. The Commissioner’s Position was not “Substantially Justified” 19 The government has the “burden to show that its position was substantially 20 justified.” Meier v. Colvin, 727 F. 3d 867, 870 (9th Cir. 2013). The government's position includes both its “litigation position and the underlying agency action giving rise to the civil 21 action.” Id. Thus, if the underlying agency action, here the ALJ's determination, was not 22 substantially justified, an award of attorney fees is warranted. Id. at 872 (“Because the 23 government's underlying position was not substantially justified, we need not address whether the 24 government's litigation position was justified.”). And, even if the government's position at the 25 agency level was substantially justified, attorney fees are still warranted if the government's 26 subsequent litigation position was not substantially justified. Id. 27 “Substantial justification means justified in substance or in the main−that is, justified to a 28 1 degree that could satisfy a reasonable person.” Id. (internal quotation marks and citation omitted). 2 Put differently, to be substantially justified, “the government's position must have a reasonable 3 basis both in law and fact.” Id. (internal quotation marks and citation omitted). 4 Here, the Commissioner has not opposed nor otherwise responded to counsel’s motion for attorney fees. Moreover, the Commissioner filed a voluntary stipulation for remand, indicating 5 that the Commissioner’s position was not substantially justified. See Ulugalu v. Berryhill, No. 17- 6 CV-01087-GPC-JLB, 2018 WL 2012330, at *3 (S.D. Cal. Apr. 30, 2018) (finding the 7 Commissioner did not demonstrate substantial justification for her position where she filed a 8 voluntary stipulation for remand and the matter was referred to an administrative law judge to 9 make a new determination as to the plaintiff's disability). Accordingly, the Court finds that 10 Plaintiff is entitled to EAJA fees, provided that such fees are reasonable.1 11 B. Reasonableness of Plaintiff’s Requested Attorney Fees 12 Under the EAJA, attorney fees must be reasonable. 28 U.S.C. § 2412(d)(1)(A); Perez– 13 Arellano v. Smith, 279 F.3d 791, 793 (9th Cir. 2002). By statute, hourly rates for 14 attorney fees under the EAJA are capped at $125 per hour, but district courts are permitted to 15 adjust the rate to compensate for increases in the cost of living. Sorenson v. Mink, 239 F.3d 1140, 16 1145 (9th Cir. 2001) (“On March 29, 1996, the statute was amended to increase the 17 maximum fee to $125 per hour, plus any ‘cost of living’ and ‘special factor’ adjustments. The 18 $125 per hour cap applies to cases commenced on or after March 29, 1996.”). In the Ninth 19 Circuit, the statutory maximum EAJA rates for the years at issue, 2020 and 2022, are $207.78 20 (2020) and $234.95. See Statutory Maximum Rates Under the Equal Access to Justice Act, U.S. Courts for the Ninth Circuit, https://www.ca9.uscourts.gov/attorneys/statutory-maximum-rates/ 21 (last visited February 27, 2023). 22 Determining a reasonable fee “requires more inquiry by a district court than finding the 23 ‘product of reasonable hours times a reasonable rate.’” Atkins v. Apfel, 154 F.3d 986, 988 (9th 24 Cir. 1998) (quoting Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)). The district court must 25
26 1 The government also bears the burden of demonstrating that no special circumstances exist that make the award unjust. 28 U.S.C. § 2412(d)(1)(A). The special circumstance exception applies when the case involves a novel but 27 credible interpretation of the law, an issue on which reasonable minds could differ, or an important and doubtful question. Grayson Elec. Co. v. NLRB, 951 F.2d 1100, 1103 (9th Cir. 1991). Since no opposition was filed by the 28 Commissioner, the Court finds that there are no special circumstances that would make an award of fees unjust. 1 consider “the relationship between the amount of the fee awarded and the results obtained.” Id. at 2 989.
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5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 SANDRA LORRAINE RAMIREZ, Case No. 1:21-cv-00578-EPG 11 Plaintiff, ORDER GRANTING UNOPPOSED MOTION FOR ATTORNEY’S FEES PURSUANT TO 12 v. EQUAL JUSTICE ACT 28 U.S.C. § 2412(d) 13 COMMISSIONER OF SOCIAL (ECF No. 24). SECURITY, 14
15 Defendants.
16 17 On January 23, 2023, Attorney Jonathan Pena, counsel for Plaintiff Sandra Lorraine 18 Ramirez, filed a motion for an award of attorney’s fees under the Equal Access to Justice Act 19 (EAJA), 28 U.S.C. § 2412(d). (ECF No. 24). On January 24, 2023, the Court ordered the 20 Commissioner to file an opposition or statement of non-opposition to Plaintiff’s request for EAJA 21 fees by no later than February 22, 2023. (ECF No. 25). Plaintiff and the Commissioner of Social 22 Security were each served with a copy of the motion. (ECF No. 26; ECF No. 24, p. 7). Neither 23 Plaintiff nor the Commissioner have filed an objection or other response to the motion. 24 For the reasons set forth below, the motion for an award of attorney’s fees is GRANTED 25 in the amount of $9,205.98. 26 I. BACKGROUND 27 Plaintiff filed the complaint in this case on April 7, 2021. (ECF No. 1). The parties 28 1 consented to this case proceeding before the undersigned. (ECF No. 11). After Plaintiff filed her 2 opening brief, the parties’ filed a stipulation for voluntary remand pursuant to Sentence Four of 3 42 U.S.C. § 405(g). (ECF No. 20). On October 25, 2022, the Court issued an order approving the 4 parties’ stipulation and entering judgment in favor of Plaintiff. (ECF No. 22). This matter is now before the Court on Plaintiff’s counsel’s motion, seeking an award of 5 $9,205.98. (ECF No. 24, p.1). In support of this amount, counsel provides an itemized list of 6 hours billed. (ECF No. 24-1). Additionally, counsel requests that “[i]f the Plaintiff has no debt 7 registered with the Department of Treasury subject to offset that the fees be made payable to the 8 attorney” pursuant to the written fee agreement between Plaintiff and Plaintiff’s counsel. (Id. at 6; 9 see ECF No. 24-2). 10 II. DISCUSSION 11 The Equal Access to Justice Act provides: 12 Except as otherwise specifically provided by statute, a court shall award to a 13 prevailing party other than the United States fees and other expenses, in addition to any costs awarded pursuant to subsection (a), incurred by that party in any civil 14 action (other than cases sounding in tort), including proceedings for judicial review of agency action, brought by or against the United States in any court 15 having jurisdiction of that action, unless the court finds that the position of the United States was substantially justified or that special circumstances make an 16 award unjust. 17 28 U.S.C. §2412(d)(1)(A). 18 A. The Commissioner’s Position was not “Substantially Justified” 19 The government has the “burden to show that its position was substantially 20 justified.” Meier v. Colvin, 727 F. 3d 867, 870 (9th Cir. 2013). The government's position includes both its “litigation position and the underlying agency action giving rise to the civil 21 action.” Id. Thus, if the underlying agency action, here the ALJ's determination, was not 22 substantially justified, an award of attorney fees is warranted. Id. at 872 (“Because the 23 government's underlying position was not substantially justified, we need not address whether the 24 government's litigation position was justified.”). And, even if the government's position at the 25 agency level was substantially justified, attorney fees are still warranted if the government's 26 subsequent litigation position was not substantially justified. Id. 27 “Substantial justification means justified in substance or in the main−that is, justified to a 28 1 degree that could satisfy a reasonable person.” Id. (internal quotation marks and citation omitted). 2 Put differently, to be substantially justified, “the government's position must have a reasonable 3 basis both in law and fact.” Id. (internal quotation marks and citation omitted). 4 Here, the Commissioner has not opposed nor otherwise responded to counsel’s motion for attorney fees. Moreover, the Commissioner filed a voluntary stipulation for remand, indicating 5 that the Commissioner’s position was not substantially justified. See Ulugalu v. Berryhill, No. 17- 6 CV-01087-GPC-JLB, 2018 WL 2012330, at *3 (S.D. Cal. Apr. 30, 2018) (finding the 7 Commissioner did not demonstrate substantial justification for her position where she filed a 8 voluntary stipulation for remand and the matter was referred to an administrative law judge to 9 make a new determination as to the plaintiff's disability). Accordingly, the Court finds that 10 Plaintiff is entitled to EAJA fees, provided that such fees are reasonable.1 11 B. Reasonableness of Plaintiff’s Requested Attorney Fees 12 Under the EAJA, attorney fees must be reasonable. 28 U.S.C. § 2412(d)(1)(A); Perez– 13 Arellano v. Smith, 279 F.3d 791, 793 (9th Cir. 2002). By statute, hourly rates for 14 attorney fees under the EAJA are capped at $125 per hour, but district courts are permitted to 15 adjust the rate to compensate for increases in the cost of living. Sorenson v. Mink, 239 F.3d 1140, 16 1145 (9th Cir. 2001) (“On March 29, 1996, the statute was amended to increase the 17 maximum fee to $125 per hour, plus any ‘cost of living’ and ‘special factor’ adjustments. The 18 $125 per hour cap applies to cases commenced on or after March 29, 1996.”). In the Ninth 19 Circuit, the statutory maximum EAJA rates for the years at issue, 2020 and 2022, are $207.78 20 (2020) and $234.95. See Statutory Maximum Rates Under the Equal Access to Justice Act, U.S. Courts for the Ninth Circuit, https://www.ca9.uscourts.gov/attorneys/statutory-maximum-rates/ 21 (last visited February 27, 2023). 22 Determining a reasonable fee “requires more inquiry by a district court than finding the 23 ‘product of reasonable hours times a reasonable rate.’” Atkins v. Apfel, 154 F.3d 986, 988 (9th 24 Cir. 1998) (quoting Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)). The district court must 25
26 1 The government also bears the burden of demonstrating that no special circumstances exist that make the award unjust. 28 U.S.C. § 2412(d)(1)(A). The special circumstance exception applies when the case involves a novel but 27 credible interpretation of the law, an issue on which reasonable minds could differ, or an important and doubtful question. Grayson Elec. Co. v. NLRB, 951 F.2d 1100, 1103 (9th Cir. 1991). Since no opposition was filed by the 28 Commissioner, the Court finds that there are no special circumstances that would make an award of fees unjust. 1 consider “the relationship between the amount of the fee awarded and the results obtained.” Id. at 2 989. Counsel for the prevailing party should exercise “billing judgment” to “exclude from 3 a fee request hours that are excessive, redundant, or otherwise unnecessary,” as a lawyer in 4 private practice would do. Hensley, 461 U.S. at 434; see also Moreno v. City of Sacramento, 534 F.3d 1106, 1111 (9th Cir. 2008) (“The number of hours to be compensated is calculated by 5 considering whether, in light of the circumstances, the time could reasonably have been billed to a 6 private client.”). 7 The Court must “provide a concise and clear explanation of the reasons” for its attorney 8 award calculation. Hensley, 461 U.S. at 433; Sorenson, 239 F.3d at 1145. A court has wide 9 latitude in determining the number of hours reasonably expended and may reduce the hours if the 10 time claimed is excessive, redundant, or otherwise unnecessary. Cunningham v. County of Los 11 Angeles, 879 F.2d 481, 484 (9th Cir. 1988). “Hours that are not properly billed to one's client are 12 not properly billed to one's adversary pursuant to statutory authority.” Hensley, 461 U.S. at 434. 13 The applicant bears the burden of demonstrating the reasonableness of the fee request. Blum v. 14 Stenson, 465 U.S. 886, 897 (1984). 15 Here, Plaintiff requests an hourly rate of $207.78 and $231.49, which is within the 16 maximum statutory rates of $207.78 (2020) and $234.95 (2022). (ECF No. 24, p. 4). Plaintiff 17 requests compensation for a total of 40.3 hours of work performed (2.75 hours of work in 2020 18 and 37.3 hours of work in 2022). (See ECF No. 24-1, p. 2). Multiplying the applicable hourly 19 rates by the hours worked yields a total of $9,205.98. The Commissioner does not contest the 20 hourly rate, and the Court finds it to be reasonable in light of the quality of counsel's work and 21 results obtained for Plaintiff. See Guzman v. Comm'r of Soc. Sec., No. 20- CV-0468-KJN, 2021 22 WL 2534462, at *4 (E.D. Cal. June 21, 2021) (finding a total of 38 hours for counsel spent 23 prosecuting the Social Security appeal to be reasonable in a case where, as here, the parties agreed to a sentence-four remand); Costa v. Comm'r of Soc. Sec. Admin., 690 F.3d 1132, 1136 24 (9th Cir. 2012) (noting that “[m]any district courts have noted that twenty to forty hours is the 25 range most often requested and granted in social security cases”) 26 // 27 // 28 1 | OL. CONCLUSION AND ORDER 2 Based on the foregoing, IT IS HEREBY ORDERED that: 3 1. Plaintiff's motion for attorney’s fees (ECF No. 24) is GRANTED; 4 2. Attorney fees and expenses in the amount of $9,205.98 pursuant to the Equal 5 Access to Justice Act, 28 U.S.C. § 2412(d) are awarded to Plaintiff. 6 3. Ifthe U.S. Department of the Treasury determines that Plaintiffs EAJA fees, 4 expenses, and costs are not subject to offset allowed under the Department of the g Treasury’s Offset Program (TOPS), then the check for EAJA fees, expenses, and 9 costs shall be made payable to Plaintiff's counsel’s firm, Pefia & Bromberg, PLC
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11 | TPIS SO ORDERED. 12 13. | Dated: _February 27, 2023 □□□ hey — UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28