Thorne v. Berryhill

• Court: District Court, S.D. California
• Decided: August 22, 2019
• Docket: 3:18-cv-01874
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JULIE ANN THORNE, Case No.: 18cv1874-MMA (LL)

12 Plaintiff, ORDER GRANTING IN PART 13 v. PLAINTIFF'S MOTION FOR FEES AND COSTS 14 ANDREW M. SAUL, Acting

Commissioner of Social Security,1 15 Defendant. [Doc. No. 24] 16 17 On August 10, 2018, Plaintiff Julie Ann Thorne, proceeding pro se, filed this social 18 security appeal challenging the denial of her request to review the Administrative Law 19 Judge’s June 1, 2016 “fully favorable decision.” Doc. No. 1. The Court referred all 20 matters arising in this appeal to the assigned magistrate judge for report and 21 recommendation pursuant to section 63(b)(1)(B) of title 28 of the United States Code and 22 Civil Local Rule 72.1. Doc. Nos. 3, 10. On May 14, 2019, the magistrate judge issued a 23 Report recommending that the Court grant in part and deny in part Plaintiff’s motion for 24 25 1 At the time this case was filed, Nancy A. Berryhill was the Acting Commissioner of Social Security. 26 Andrew M. Saul became the Commissioner of Social Security on June 4, 2019. When a public officer ceases to hold office while an action is pending, the officer’s successor is automatically substituted as a 27 party. Fed. R. Civ. P. 25(d). Later proceedings should be in the substituted party’s name and the Court may order substitution at any time. Id. Accordingly, the Court ORDERS the Clerk of Court to 28 1 summary judgment, deny Defendant’s cross-motion for summary judgment and motion 2 for remand, and remanding the case for a calculation and award of benefits based on 3 Plaintiff’s January 24, 2006 application date. Doc. No. 21 at 2. The Court adopted the 4 Report and Recommendation in its entirety and remanded this matter to the Social 5 Security Administration for a calculation and award of benefits based on Plaintiff’s 6 January 24, 2006 application date. Doc. No. 22. Plaintiff now seeks an award of 7 attorney’s fees and costs under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 8 2412(d)(1)(A). Doc. No. 24 (“Mtn.”). The Commissioner filed a response in opposition 9 [Doc. No. 26 (“Oppo.”)], and Plaintiff replied [Doc. No. 27 (“Reply”)]. The Court found 10 the matter suitable for determination on the papers and without oral argument pursuant to 11 Civil Local Rule 7.1.d.1. See Doc. No. 25. For the reasons set forth below, the Court 12 GRANTS IN PART Plaintiff’s motion. 13 LEGAL STANDARD 14 The EAJA provides, in relevant part: 15 Except as otherwise specifically provided by statute, a court shall award to a prevailing party other than the United States fees and other expenses, in 16 addition to any costs awarded pursuant to subsection (a), incurred by that party 17 in any civil action (other than cases sounding in tort), including proceedings for judicial review of agency action, brought by or against the United States 18 in any court having jurisdiction of that action, unless the court finds that the 19 position of the United States was substantially justified or that special circumstances make an award unjust. 20

21 28 U.S.C. § 2412(d)(1)(A). The prevailing party must file an application within thirty 22 days of final judgment. 28 U.S.C. § 2412(d)(1)(B). That application must show that the 23 party is a prevailing party, is eligible to receive an award under this subsection, and the 24 amount sought, which includes an itemized statement stating the actual time spent and the 25 rate that the fees and expenses were computed. Id. 26 DISCUSSION 27 Plaintiff, proceeding pro se, requests attorney’s fees in the amount of $6,000 and 28 $795.77 in expenses and costs. Mtn. at 1-2; Reply at 5. The parties do not dispute that 1 Plaintiff is the prevailing party and that the motion was timely filed. See Mtn.; see also 2 Oppo. Rather, the Commissioner opposes Plaintiff’s request for an EAJA award on the 3 grounds that she is “not a compensable prevailing party.” Oppo. at 3. 4 A. Attorney’s Fees 5 Plaintiff contends the Court may award attorney’s fees to her because she had to 6 hire an attorney to represent her prior to filing the complaint in this Court. See Reply at 7 2. However, attorneys’ fees are not awardable under the EAJA for work done by pro se 8 litigants because “Congress intended that an attorney have been retained for a prevailing 9 pro se litigant to recover attorneys’ fees under the EAJA.” Merrell v. Block, 809 F.2d 10 639, 641-42 (9th Cir. 1987). Here, Plaintiff did not retain an attorney to assist her with 11 this case for judicial review of her social security appeal.2 See Docket. Accordingly, the 12 Court DENIES Plaintiff’s request for an award of attorney’s fees. 13 B. Expenses and Costs 14 Plaintiff also requests an award of expenses and costs amounting to $795.77. 15 Reply at 5. Pro se litigants may recover costs and expenses under the EAJA. See 16 Merrell, 809 F.2d at 642. A prevailing party is entitled to costs pursuant to subsection 17 (a)(1) of the EAJA and litigation expenses pursuant to subsection (d)(1)(A) of the EAJA. 18 28 U.S.C. § 2412(d)(1)(A) (“[A] court shall award to a prevailing party other than the 19 United States fees and other expenses, in addition to any costs awarded pursuant to 20 subsection (a), incurred by that party in any civil action . . . .”). 21 Recoverable costs under EAJA subsection (a)(1) are governed by 28 U.S.C. § 22 1920, which compensates parties for: (1) fees of the clerk and marshal; (2) fees of the 23 court reporter; (3) fees and disbursements for printing and witnesses; (4) fees for 24 exemplification and copies of papers; (5) docket fees; and (6) compensation of court 25 appointed personnel. 28 U.S.C. § 1920. The EAJA also awards prevailing parties “fees 26

27 2 If a pro se plaintiff hires an attorney, counsel is advised to substitute in if counsel is actually doing 28 1 other expenses” incurred in the litigation. 28 U.S.C. § 2412 (d)(1)(A). Other 2 || expenses include “the reasonable expenses of expert witnesses, the reasonable cost of any 3 || study, analysis, engineering report, test, or project which is found by the court to be 4 ||necessary for the preparation of the party’s case... 28 U.S.C. § 2412(d)(2)(A). The 5 || Ninth Circuit has held that this is not an exclusive list. See Int’l Woodworkers, Local 3- 6 || 98 v. Donovan, 792 F.2d 762, 767 (9th Cir. 1985). For example, the Ninth Circuit has 7 upheld EAJA awards that included compensation for telephone calls, postage, air courier 8 ||expense, and travel expenses. Id. 9 Here, Plaintiff requests an award for filing costs of $400 and copying costs of 10 ||$71.73. Mtn. at 3; see also Reply at 5. She also requests an award for parking expenses 11 || of $30, postage expenses of $29.04, “[s]tamp cost (“Original” and “Copy” in red inky” 12 |/expenses of $22.10, and mileage expenses of $242.42. Reply at 5. The Court finds that 13 || Plaintiff reasonably incurred the requested costs and expenses. See Int’! Woodworkers, 14 || Local 3-98, 792 F.2d at 767. 15 CONCLUSION 16 For the reasons set forth above, the Court GRANTS IN PART Plaintiff's motion 17 ||and AWARDS Plaintiff $795.77 in costs and litigation expenses.° 18 IT IS SO ORDERED. 19 Dated: August 22, 2019 Mikel Ll. 20 Hon. Michael M. Anello tells 1 United States District Judge 22 23 24 25 26 3 Plaintiff also requests for the first time in her reply brief that the Court “instruct SSA to expeditiously 27 || resolve the payment issue.” Reply at 4. Parties “cannot raise a new issue for the first time in their reply 28 briefs.” Nevada v. Watkins, 914 F.2d 1545, 1560 (9th Cir. 1990). Accordingly, the Court declines to address this request.