Tice v. Kijakazi

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JANET T., Case No.: 22-cv-00616-JLB

12 Plaintiff, ORDER GRANTING JOINT 13 v. MOTION FOR AWARD OF ATTORNEY’S FEES PURSUANT TO 14 MARTIN O’MALLEY, Acting THE EQUAL ACCESS TO JUSTICE Commissioner of Social Security,1 15 ACT (28 U.S.C. § 2412(d)) Defendant. 16 [ECF No. 19] 17

19 Pending before the Court is the parties’ Joint Motion for Award of Attorney’s Fees 20 Pursuant to the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d). (ECF No. 19.) 21 For the reasons that follow, the joint motion is GRANTED. 22 I. BACKGROUND 23 On May 2, 2022, Plaintiff Janet T. (“Plaintiff”) filed a complaint pursuant to 42 24 U.S.C. § 405(g) seeking judicial review of a decision by Martin O’Malley, the Acting 25

26 27 1 Martin O’Malley, the current Acting Commissioner of Social Security, is automatically substituted as the defendant for Kilolo Kijakazi, the former Acting 28 1 Commissioner of Social Security (the “Commissioner”), denying her application for social 2 security disability insurance benefits. (ECF No. 1.) The Commissioner filed the 3 administrative record on July 12, 2022. (ECF No. 7.) Thereafter, Plaintiff filed a merits 4 brief (ECF No. 9), and the Commissioner filed an opposition (ECF No. 13). On September 5 20, 2023, the Court granted Plaintiff’s merits brief, reversed the decision of the 6 Commissioner, and remanded the matter for further administrative proceedings pursuant 7 to sentence four of 42 U.S.C. § 405(g). (ECF No. 17.) 8 On December 19, 2023, the parties filed the instant joint motion requesting the Court 9 award Plaintiff attorney fees and expenses in the amount of $6,700.002 under the EAJA, 10 and costs in the amount of $402.00 under 28 U.S.C. § 1920. (ECF No. 19 at 1.) This 11 amount represents compensation for all legal services rendered on behalf of Plaintiff by 12 counsel in connection with this action. (Id.) 13 II. THRESHOLD ISSUE OF TIMELINESS 14 The prevailing party is eligible to seek attorney’s fees within thirty days of final 15 judgment in the action. 28 U.S.C. § 2412(d)(1)(B). “A sentence four remand becomes a 16 final judgment, for purposes of attorneys’ fees claims brought pursuant to the EAJA, upon 17 expiration of the time for appeal.” Akopyan v. Barnhart, 296 F.3d 852, 854 (9th Cir. 2002) 18 (internal citation omitted) (citing Shalala v. Schaefer, 509 U.S. 292, 297 (1993). Under 19 Federal Rule of Appellate Procedure 4(a)(1)(B), the time for appeal expires sixty days after 20 entry of judgment if one of the parties is a United States officer sued in an official capacity. 21 Therefore, a motion for attorney’s fees filed after a sentence four remand is timely if filed 22 within thirty days after Rule 4(a)’s sixty-day appeal period has expired. Hoa Hong Van v. 23 Barnhart, 483 F.3d 600, 607 (9th Cir. 2007). 24 25 26 2 In Plaintiff’s itemization of fees, the total amount of the attorney fees was calculated 27 to be $6,887.95. (ECF No. 19-2.) However, the parties negotiated a lesser amount and, in the parties’ joint motion, the total fee requested for attorney fees was $6,700.00. 28 1 Here, the parties filed the motion for EAJA fees on December 19, 2023, which is 2 29 days after the 60-day appeal period ended. Accordingly, the Court finds that the parties’ 3 joint motion is timely. 4 III. DISCUSSION 5 A litigant is entitled to attorney’s fees under the EAJA if: “(1) [s]he is the prevailing 6 party; (2) the government fails to show that its position was substantially justified or that 7 special circumstances make an award unjust; and (3) the requested fees and costs are 8 reasonable.” Carbonell v. I.N.S., 429 F.3d 894, 898 (9th Cir. 2005) (citing Perez–Arellano 9 v. Smith, 279 F.3d 791, 793 (9th Cir. 2002)); see also 28 U.S.C. § 2412(d)(1)(A). The 10 Court will address these elements in turn. 11 A. Prevailing party 12 “A plaintiff who obtains a sentence four remand” under 42 U.S.C. § 405(g), even 13 when further administrative review is ordered, “is considered a prevailing party for 14 purposes of attorneys’ fees.” Akopyan, 296 F.3d at 854 (citing Schaefer, 509 U.S. at 297– 15 98, 301–02). Here, Plaintiff is the prevailing party because the Court granted her merits 16 brief, reversed the decision of the Commissioner, and remanded the matter for further 17 administrative proceedings. (See ECF No. 17.) 18 B. Substantial Justification 19 It is the Commissioner’s burden to prove that his position, both in the underlying 20 administrative proceedings and in the subsequent litigation, was substantially justified 21 under 28 U.S.C. 2412(d)(1)(A). Meier v. Colvin, 727 F.3d 867, 870 (9th Cir. 2013). Here, 22 the Commissioner makes no argument that his position was substantially justified. Rather 23 the instant fee request comes to the Court by way of a joint motion. (See ECF No. 19.) 24 Accordingly, the Commissioner has not met his burden of showing his position was 25 substantially justified or that special circumstances make an award unjust. 26 C. Reasonableness of Hours 27 “The most useful starting point for determining the amount of a reasonable fee is the 28 number of hours reasonably expended on the litigation multiplied by a reasonable hourly 1 rate.” Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). “Many district courts have noted 2 that twenty to forty hours is the range most often requested and granted in social security 3 cases.” Costa v. Comm’r of SSA, 690 F.3d 1132, 1136 (9th Cir. 2012); see also Hensley, 4 461 U.S. at 435 (“Where a plaintiff has obtained excellent results, his attorney should 5 recover a fully compensatory fee.”). Accordingly, the Court finds the 29.3 total hours 6 billed by Plaintiff’s counsel to be reasonable in light of Plaintiff’s results in the case. See 7 Darren Jeffrey C. v. Kijakazi, No. 3:21-cv-01012-AHG, 2022 WL 17826795, at *2 (S.D. 8 Cal. Dec. 20, 2022) (finding 51.5 total hours requested reasonable where the court granted 9 the plaintiff’s merits brief, reversed the decisions of the Commissioner, and remanded the 10 matter for further proceedings). 11 D. Reasonableness of Hourly Rate 12 The EAJA provides that the court may award reasonable attorney fees “based upon 13 prevailing market rates for the kind and quality of the services furnished,” but that “attorney 14 fees shall not be awarded in excess of $125 per hour unless the court determines that an 15 increase in the cost of living or a special factor, such as the limited availability of qualified 16 attorneys for the proceedings involved, justifies a higher fee.” 28 U.S.C. § 2412(d)(2)(A). 17 The statutory maximum EAJA rate for work performed in 2023 in the Ninth Circuit, 18 factoring in increases in the cost of living, was $244.62, and the statutory maximum EAJA 19 rate for 2022 was $234.95. See United Sates Courts for the Ninth Circuit, Statutory 20 Maximum Rates Under the Equal Access to Justice Act, 21 https://www.ca9.uscourts.gov/attorneys/statutory-maximum-rates/ (last visited Jan. 18, 22 2024). 23 Here, Counsel’s hourly rates are in line with the Ninth Circuit’s EAJA hourly rate. 24 (ECF No. 19-2.) Plaintiff’s counsel billed an hourly rate of $242.78 for work completed 25 in 2023 and $234.95 for work completed in 2022. (Id.) Accordingly, the Court finds that 26 the hourly rate billed by counsel is reasonable. See Roland S. v. Saul, No. 3:20-cv-01068- 27 AHG, 2021 WL 4081567, at *3 (S.D. Cal. Sept. 7, 2021) (finding hourly rates consistent 28 with the Ninth Circuit’s EAJA rates to be reasonable). 1 E. Costs 2 Filing fees are recoverable costs under the EAJA. 28 U.S.C. §§ 1920, 2412(d); see 3 Darren Jeffrey C., 2022 WL 17826795, at *4 (awarding $402 in filing costs after the Court 4 remanded in Plaintiff’s favor). Here, Plaintiff seeks reimbursement of the $402.00 filing 5 fee expended to initiate this action. Although Plaintiff does not attach any receipt in 6 support of the costs requested, the Court takes judicial notice that the docket in this action 7 reflects the payment of the filing fee. (ECF No. 1 ($402.00 filing fee, receipt number 8 ACASDC-16785915).) Accordingly, the Court grants the reimbursement costs in the 9 amount of $402.00. 10 F. Assignment of Rights to Counsel 11 The parties jointly request that “[f]ees shall be made payable to Plaintiff, but if the 12 Department of the Treasury determines that Plaintiff does not owe a federal debt, then the 13 government shall cause the payment of fees, expenses and costs to be made directly to 14 [Plaintiff’s counsel], pursuant to the assignment executed by Plaintiff.” (ECF No. 19 at 2.) 15 “[A] § 2412(d) fees award is payable to the litigant and is therefore subject to a 16 Government offset to satisfy a pre-existing debt that the litigant owes the United States.” 17 Astrue v. Ratliff, 560 U.S. 586, 589 (2010). However, this “does not prevent payment of a 18 fee award directly to the attorney where there has been a valid assignment and the plaintiff 19 does not owe a debt to the government.” Ulugalu v. Berryhill, No. 3:17-cv-01087-GPC- 20 JLB, 2018 WL 2012330, at *4 (S.D. Cal. Apr. 30, 2018). Here, Plaintiff assigned her 21 EAJA fees to her attorney, Martha Yancey. (ECF No. 19-1.) Therefore, if Plaintiff has no 22 federal debt that is subject to offset, the award of fees and costs may be paid directly to 23 attorney Martha Yancey pursuant to the assignment agreement and the parties’ joint 24 motion. 25 /// 26 /// 27 /// 28 /// 1 |}IV. CONCLUSION 2 Based on the foregoing, the Court GRANTS the parties’ joint motion and 3 || AWARDS Plaintiff $6,700.00 in attorney fees and expenses pursuant to 28 U.S.C. § 2412, 4 || and $402.00 in costs pursuant to 28 U.S.C. § 1920, subject to the terms of the joint motion. 5 |} IT IS SO ORDERED. 6 Dated: February 1, 2024 -

n. Jill L. Burkhardt 8 ited States Magistrate Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28