Suciu v. Kijakazi

• Court: District Court, S.D. California
• Decided: March 20, 2024
• Docket: 3:23-cv-01846
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 LILIANA IRINIA S., Case No.: 3:23-cv-01846-AHG 12 Plaintiff, ORDER GRANTING JOINT MOTION FOR THE AWARD AND 13 v. PAYMENT OF ATTORNEY FEES 14 MARTIN O’MALLEY, Commissioner PURSUANT TO THE EQUAL of Social Security, 1 ACCESS TO JUSTICE ACT 15

16 Defendant. [ECF No. 10] 17 18 Before the Court is the parties’ Joint Motion for the Award and Payment of Attorney 19 Fees and Expenses Pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412(d) and 20 Costs Pursuant to 28 U.S.C. § 1920.2 ECF No. 10. For the reasons set forth below, the 21

22 23 1 Martin O’Malley became the Commissioner of the Social Security Administration on December 20, 2023. Although Plaintiff originally brought this action against former Acting 24 Commissioner Kilolo Kijakazi, this case may properly proceed against Martin O’Malley 25 pursuant to 42 U.S.C. § 405(g).

26 2 Although the joint motion is styled as a motion seeking both attorney fees under the EAJA 27 and costs under 28 U.S.C. § 1920, the parties request “no costs” be awarded. See ECF No. 10 at 1. The Court therefore does not address the request for “costs” in its discussion. 28 1 Court GRANTS the parties’ joint motion. 2 I. BACKGROUND 3 The underlying action involves Plaintiff’s appeal of the Social Security 4 Administration’s denial of her application for disability insurance benefits at the agency 5 level. ECF No. 1. The parties consented to proceed before the undersigned Magistrate 6 Judge on October 13, 2023. ECF No. 5. On November 30, 2023, the parties filed a joint 7 motion for voluntary remand pursuant to sentence four of 42 U.S.C. § 405(g). ECF No. 8. 8 The same day, the Court granted the joint motion, remanded the case to the Commissioner 9 of Social Security for further administrative proceedings, and entered a final judgment 10 reversing the final decision of the Commissioner. ECF No. 9. A Clerk’s Judgment was 11 entered the following day on December 1, 2023. ECF No. 10. 12 On February 26, 2024, the parties filed the instant motion. ECF No. 10. The parties 13 jointly request that Plaintiff’s counsel receive compensation for 5.4 hours of work at 14 $244.62 per hour, and that Plaintiff’s counsel’s paralegals receive compensation for 1.6 15 hours of work at $160.00 per hour, for a total discounted fee request of $1,500.00.3 ECF 16 No. 10 at 1. 17 II. THRESHOLD ISSUE OF TIMELINESS 18 According to the EAJA, an application for fees must be filed “within thirty days of 19 final judgment.” 28 U.S.C. § 2412(d)(1)(B). A final judgment is “a judgment that is final 20 and not appealable . . . .” 28 U.S.C. § 2412(d)(2)(G). The Ninth Circuit has held that the 21 EAJA’s 30-day filing period does not begin to run until after the 60-day appeal period in 22 Federal Rule of Appellate Procedure 4(a).4 Hoa Hong Van v. Barnhart, 483 F.3d 600, 612 23

24 25 3 According to Plaintiff’s counsel’s billing records, attorney Steven Rosales billed a total of $1,320.95 and the firm’s paralegals billed a total of $256.00, for a total sum of $1,576.95. 26 ECF No. 10-1. However, the parties request a slightly discounted amount of $1,500.00 in 27 the joint motion. ECF No. 10 at 1.

28 1 (9th Cir. 2007). 2 Here, the parties filed the motion for EAJA fees on February 26, 2024, 87 days after 3 final judgment was entered on December 1, 2023. Therefore, the Court finds the joint 4 motion is timely. 5 III. DISCUSSION 6 Under the EAJA, a litigant is entitled to attorney fees and costs if: “(1) he is the 7 prevailing party; (2) the government fails to show that its position was substantially 8 justified or that special circumstances make an award unjust; and (3) the requested fees and 9 costs are reasonable.” Carbonell v. I.N.S., 429 F.3d 894, 898 (9th Cir. 2005). The Court 10 will address these elements in turn. 11 A. Prevailing party 12 A plaintiff is a prevailing party if she “has ‘succeeded on any significant issue in 13 litigation which achieve[d] some of the benefit . . . sought in bringing suit.’” Ulugalu v. 14 Berryhill, No. 17cv1087-GPC-JLB, 2018 WL 2012330, at *2 (S.D. Cal. Apr. 30, 2018) 15 (quoting Shalala v. Schaefer, 509 U.S. 292, 302 (1993)). Here, Plaintiff is the prevailing 16 party because this case was remanded pursuant to sentence four of 42 U.S.C. § 405(g). 17 ECF No. 13. See Akopyan v. Barnhart, 296 F.3d 852, 854 (9th Cir. 2002) (“A plaintiff who 18 obtains a sentence four remand is considered a prevailing party for purposes of attorneys’ 19 fees.”); Ulugalu, 2018 WL 2012330, at *2 (in a case where the parties jointly stipulated to 20 remand, “because the Court granted the Commissioner’s proposed order for remand and 21 entered judgment in favor of Plaintiff pursuant to sentence four, Plaintiff is a prevailing 22 party”). 23 B. Substantial justification 24 The government bears the burden of proving that its position, both in the underlying 25

26 27 by any party within 60 days after entry of the judgment or order appealed from” if one of the parties is the United States or a United States officer sued in an official capacity. Fed. 28 1 administrative proceedings and in the subsequent litigation, was substantially justified. 2 Meier v. Colvin, 727 F.3d 867, 870 (9th Cir. 2013). Here, the parties have stipulated to the 3 EAJA amount, and explain that the stipulation “constitutes a compromise settlement of 4 Plaintiff’s request for EAJA attorney fees[.]” ECF No. 10 at 2. Although Defendant’s 5 stipulation does not constitute an admission of liability on its part, the compromise nature 6 of the request is sufficient to find the second element met, given that “Defendant has 7 stipulated to the attorney[] fees and does not argue that the prevailing party’s position was 8 substantially unjustified.” Krebs v. Berryhill, 16cv3096-JLS-BGS, 2018 WL 3064346, at 9 *2 (S.D. Cal. June 21, 2018); see also Black v. Berryhill, No. 18cv1673-JM-LL, 2019 WL 10 2436393, at *1 (S.D. Cal. June 11, 2019) (finding the second element met because, “in 11 light of the joint nature of the parties’ request and the court’s prior order remanding this 12 action, the government has not shown that its position was substantially justified.”). 13 Furthermore, “[b]ecause the Commissioner filed a voluntary stipulation for remand and the 14 matter was referred to an Administrative Law Judge to make a new determination as to 15 Plaintiff’s disability, the Court is persuaded the Commissioner did not have substantial 16 justification for denying Plaintiff disability rights.” Ulugalu, 2018 WL 2012330, at *3. 17 C. Reasonableness of Hours 18 The parties seek a fee award for 5.4 hours billed by Plaintiff’s counsel and 1.6 hours 19 billed by Plaintiff’s counsel’s paralegals, for a total of 7 hours. ECF No. 10-1. The Court 20 finds the number of hours billed by Plaintiff’s counsel and paralegals reasonable. See 28 21 U.S.C. § 2412(d); Nadarajah v. Holder, 569 F.3d 906, 918 (9th Cir. 2009); see also Costa 22 v. Comm’r of SSA, 690 F.3d 1132, 1136 (9th Cir. 2012) (reiterating the Ninth Circuit’s 23 previous position that “‘lawyers are not likely to spend unnecessary time on contingency 24 fee cases in the hope of inflating their fees’ because ‘the payoff is too uncertain.’ [] As a 25 result, courts should generally defer to the ‘winning lawyer’s professional judgment as to 26 how much time he was required to spend on the case.’”) (quoting Moreno v. City of 27 Sacramento, 534 F.3d 1106, 1112–13 (9th Cir. 2008)). Indeed, the number of hours billed 28 is quite modest compared to the typical range seen in social security appeals. See, e.g., 1 Costa, 690 F.3d at 1136 (noting “[m]any district courts have noted that twenty to forty 2 hours is the range most often requested and granted in social security cases”); Rogers v. 3 Astrue, No. 1:09-CV-02158-JLT, 2010 WL 4569058, at *6 (E.D. Cal. Nov. 3, 2010) 4 (finding 9.6 hours billed by an attorney and 2.5 hours billed by a paralegal to be reasonable 5 in a case where, as here, the Commissioner voluntarily remanded a social security appeal 6 pursuant to sentence four of 42 U.S.C. § 405(g)). 7 D. Reasonableness of Hourly Rate 8 The 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 “attorney 10 fees shall not be awarded in excess of $125 per hour unless the court determines that an 11 increase in the cost of living or a special factor, such as the limited availability of qualified 12 attorneys for the proceedings involved, justifies a higher fee.” 28 U.S.C. § 2412(d)(2)(A). 13 The Ninth Circuit’s hourly EAJA rate for work performed in 2023, factoring in 14 increases in the cost of living, was $244.62. See United States Courts for the Ninth 15 Circuit, Statutory Maximum Rates Under the Equal Access to Justice Act, 16 https://www.ca9.uscourts.gov/attorneys/statutory-maximum-rates/ (last visited Mar. 19, 17 2024). There is not yet a published statutory rate for work performed in 2024, but, 18 consistent with the Ninth Circuit’s guidance, counsel properly used the 2023 rate of 19 $244.62 for work done in 2024 in his billing records. See id. (instructing attorneys to “use 20 the rate that is posted for the previous period” if no rate is posted for the period in which 21 the attorney’s work was performed). See also ECF No. 10-1. Since counsel used the Ninth 22 Circuit’s applicable statutory maximum rate under the EAJA, the Court finds the hourly 23 rates billed by counsel are reasonable. See Thangaraja v. Gonzales, 428 F.3d 870, 876 (9th 24 Cir. 2005) (“EAJA provides for an upward adjustment of the $125 rate contained in the 25 statute, based on cost-of-living increases”) (citing 28 U.S.C. § 2412(d)(2)(A)); see, e.g., 26 Black, 2019 WL 2436393, at *1 (considering the Ninth Circuit’s hourly EAJA rate a 27 reasonable rate). 28 The Court also finds the $160 hourly rate billed by the paralegals at Plaintiff’s 1 counsel’s firm to be reasonable. Courts may consider the United States Consumer Law 2 Attorney Fee Survey Report to determine the appropriate market rate for paralegals in a 3 given area. See, e.g., Ulugalu, 2018 WL 2012330, at *4; Rosemary G. V. v. Saul, No. 3:19- 4 CV-00715-RBM, 2020 WL 6703123, at *5 (S.D. Cal. Nov. 12, 2020). According to the 5 most recent available report from 2017-2018, the average paralegal billing rate in San 6 Diego was $147 at that time. See United States Consumer Law Attorney Fee Survey Report 7 2017-2018, available at https://burdgelaw.com/wp-content/uploads/2021/11/US- 8 Consumer-Law-Attorney-Fee-Survey-Report-w-Table-of-Cases-091119.pdf (last visited 9 Mar. 19, 2024). Accounting for inflation over the past five years, the Court finds that a 10 $160 hourly rate for a paralegal in the San Diego area for work performed in 2023 is 11 reasonable. 12 E. Assignment of Rights to Counsel 13 The parties jointly request that “[f]ees shall be made payable to [Plaintiff], but if the 14 Department of the Treasury determines that [Plaintiff] does not owe a federal debt, then 15 the government shall cause the payment of fees, expenses and costs to be made directly to 16 Law Offices of Lawrence D. Rohlfing, pursuant to the assignment executed by [Plaintiff].” 17 ECF No. 10 at 2; see also ECF No. 10-2 ¶ 4 (representation agreement signed by Plaintiff 18 stating that the attorney shall seek compensation under the EAJA, that the EAJA fees shall 19 credit to the client for fees otherwise payable for the work, and Plaintiff “shall endorse such 20 documents as are needed to pay Attorney any amounts under the EAJA and assigns such 21 fee awards to Attorney.”). 22 The Supreme Court has held that “a § 2412(d) fee award is payable to the litigant 23 and is therefore subject to a Government offset to satisfy a pre-existing debt that the litigant 24 owes the United States.” Astrue v. Ratliff, 560 U.S. 586, 588–89 (2010). Nonetheless, 25 “district courts have recognized that Ratliff does not prevent payment of a fee award 26 directly to the attorney where there has been a valid assignment and the plaintiff does not 27 owe a debt to the government.” Ulugalu, 2018 WL 2012330, at *4–*5 (reviewing 28 Plaintiff’s assignment agreement and ordering that the EAJA fees be paid to plaintiff’s 1 ||counsel, subject to any administrative offset due to outstanding federal debt); see also 2 || Calderon v. Astrue, No. 08cv1015-GSA, 2010 WL 4295583, at *8 (E.D. Cal. Oct. 21, 3 2010) (Plaintiff, as the prevailing litigant, would normally be awarded the fees described 4 above, subject to any offset for applicable government debts. Defendant, however, seems 5 ||to be content to permit payment to Plaintiff's counsel if Plaintiff does not have any 6 || qualifying government debt . . . . This Court finds the government’s position to be 7 || reasonable and will therefore permit payment to Plaintiff's counsel provided Plaintiff has 8 ||no government debt that requires offset’’). 9 Here, Plaintiff assigned her right to EAJA fees to her attorney. ECF No. 10-1 4 4. 10 || Accordingly, if Plaintiff has no federal debt that is subject to offset, the award of fees may 11 paid directly to Law Offices of Lawrence D. Rohfling pursuant to the assignment 12 || agreement. 13 CONCLUSION 14 Based on the foregoing, the Court hereby ORDERS that: 15 1. The parties’ Joint Motion for the Award and Payment of Attorney Fees and 16 ||Expenses Pursuant to the Equal Access to Justice Act, 28 U.S.C. §2412(d) and Costs 17 || Pursuant to 28 U.S.C. § 1920 (ECF No. 10) is GRANTED; 18 2. Plaintiff is awarded attorney fees under the EAJA in the amount of $1,500.00; 19 || and 20 3. Pursuant to Astrue v. Ratliff, 560 U.S. 586, 588-89 (2010), any payment shall 21 made payable to Plaintiff and delivered to Plaintiff's counsel, unless Plaintiff does not 22 || owe a federal debt. If the United States Department of the Treasury determines that Plaintiff 23 not owe a federal debt, the government shall accept Plaintiff's assignment of EAJA 24 || fees and pay fees directly to Plaintiff's counsel. 25 IT IS SO ORDERED. 26 || Dated: March 19, 2024 _ArwiorwH. Xyolard Honorable Allison H. Goddard 28 United States Magistrate Judge