1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 RUDY T., Case No.: 24-cv-00719-JLB
12 Plaintiff, ORDER GRANTING IN PART 13 v. JOINT MOTION FOR THE AWARD AND PAYMENT OF ATTORNEY 14 MARTIN O’MALLEY, Commissioner of FEES AND EXPENSES PURSUANT Social Security, 15 TO THE EQUAL ACCESS TO Defendant. JUSTICE ACT, 28 U.S.C. § 2412(d) 16 AND COSTS PURSUANT TO 28 17 U.S.C. § 1920
18 [ECF No. 14] 19 20 Before the Court is the parties’ Joint Motion for the Award and Payment of Attorney 21 Fees and Expenses Pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412(d) and 22 Costs Pursuant To 28 U.S.C. § 1920 (“Joint Motion”). (ECF No. 14.) For the following 23 reasons, the Joint Motion is GRANTED IN PART. 24 I. BACKGROUND 25 On April 22, 2024, Plaintiff Rudy T. (“Plaintiff”) filed a complaint pursuant to 26 42 U.S.C. § 405(g) seeking judicial review of a decision by the Commissioner of Social 27 Security (the “Commissioner”), denying his application for benefits under the Social 28 1 Security Act, Titles II and XVI. (ECF No. 1.) The Commissioner filed the Administrative 2 Record on June 21, 2024. (ECF No. 9.) 3 On July 9, 2024, the parties filed a joint motion for voluntary remand pursuant to 4 sentence four of 42 U.S.C. § 405(g). (ECF No. 11.) The Court granted the joint motion, 5 remanded the matter for further administrative proceedings pursuant to sentence four of 6 42 U.S.C. § 405(g), and directed the Clerk of Court to enter a final judgment in favor of 7 Plaintiff, reversing the final decision of the Commissioner. (ECF No. 12.) 8 On October 3, 2024, the parties filed the present Joint Motion requesting the Court 9 award Plaintiff attorney fees and expenses in the amount of $1,499.37. (ECF No. 14 at 1.) 10 This amount represents compensation for all legal services rendered on behalf of Plaintiff 11 by counsel in connection with this action. (Id.) 12 II. THRESHOLD ISSUE OF TIMELINESS 13 The prevailing party is eligible to seek attorney’s fees within thirty days of final 14 judgment in the action. 28 U.S.C. § 2412(d)(1)(B). “A sentence four remand becomes a 15 final judgment, for purposes of attorneys’ fees claims brought pursuant to the EAJA, upon 16 expiration of the time for appeal.” Akopyan v. Barnhart, 296 F.3d 852, 854 (9th Cir. 2002) 17 (internal citation omitted) (citing Shalala v. Schaefer, 509 U.S. 292, 297 (1993). Under 18 Federal Rule of Appellate Procedure 4(a)(1)(B), the time for appeal expires sixty days after 19 entry of judgment if one of the parties is a United States officer sued in an official capacity. 20 Therefore, a motion for attorney’s fees filed after a sentence four remand is timely if filed 21 within thirty days after Rule 4(a)’s 60-day appeal period has expired. Hoa Hong Van v. 22 Barnhart, 483 F.3d 600, 607 (9th Cir. 2007). 23 Here, judgment was entered on July 10, 2024. (ECF No. 13.) The parties filed the 24 Joint Motion on October 3, 2024, within thirty days after the 60-day appeal period had 25 expired. (ECF No. 14.) The Court therefore finds the Joint Motion timely. 26 III. DISCUSSION 27 A litigant is entitled to attorney’s fees under the EAJA if: “[A] he is the prevailing 28 party; [B] the government fails to show that its position was substantially justified or that 1 special circumstances make an award unjust; and [C] the requested fees and costs are 2 reasonable.” Carbonell v. I.N.S., 429 F.3d 894, 898 (9th Cir. 2005) (citing Perez–Arellano 3 v. Smith, 279 F.3d 791, 793 (9th Cir. 2002)); see also 28 U.S.C. § 2412(d)(1)(A). The 4 Court will address these elements in turn. 5 A. Prevailing party 6 “A plaintiff who obtains a sentence four remand” under 42 U.S.C. § 405(g), even 7 when further administrative review is ordered, “is considered a prevailing party for 8 purposes of attorneys’ fees.” Akopyan, 296 F.3d at 854 (citing Schaefer, 509 U.S. at 297– 9 98, 301–02). Here, Plaintiff is the prevailing party because the Court granted the joint 10 motion for voluntary remand, entered judgment in his favor, reversed the decision of the 11 Commissioner, and remanded the matter for further administrative proceedings. (See ECF 12 Nos. 11, 12.) 13 B. Substantial Justification 14 It is the Commissioner’s burden to prove that his position, both in the underlying 15 administrative proceedings and in the subsequent litigation, was substantially justified 16 under 28 U.S.C. § 2412(d)(1)(A). Meier v. Colvin, 727 F.3d 867, 870 (9th Cir. 2013). 17 Here, the Commissioner makes no argument that his position was substantially justified. 18 Rather, the Commissioner filed a joint motion to voluntarily remand this case for further 19 administrative proceedings, and the instant fee request comes to the court by way of a joint 20 motion. See Ulugalu v. Berryhill, No. 17-CV-01087-GPC-JLB, 2018 WL 2012330, at *3 21 (S.D. Cal. Apr. 30, 2018). In Ulugalu, the court found that the Commissioner did not 22 demonstrate substantial justification for her position due to the very fact that she filed a 23 voluntary stipulation for remand and the matter was referred to an administrative law judge 24 to make a new determination as to the plaintiff’s disability—as did the Commissioner in 25 this action. Id. 26 The parties stipulate in their Joint Motion that “[t]his stipulation constitutes a 27 compromise settlement of [Plaintiff’s] request for EAJA attorney fees, expenses, and costs, 28 and does not constitute an admission of liability on the part of Defendant under the EAJA 1 or otherwise.” (ECF No. 14 at 2.) This, however, does not change the nature or 2 circumstances of the instant request. Despite the disclaimer, “the compromise nature of 3 the request is sufficient to find the second element met, given that ‘Defendant has stipulated 4 to the attorney[ ] fees and does not argue that the prevailing party’s position was 5 substantially unjustified.’” Dana F. v. Kijakazi, No. 20-cv-01548-AHG, 2022 WL 542881, 6 at *2 (S.D. Cal., Feb. 23, 2022) (quoting Krebs v. Berryhill, No. 16-cv-3096-JLS-BGS, 7 2018 WL 3064346, at *2 (S.D. Cal. Jun. 21, 2018)). For these reasons, the Court finds that 8 Plaintiff meets the second requirement. 9 C.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 RUDY T., Case No.: 24-cv-00719-JLB
12 Plaintiff, ORDER GRANTING IN PART 13 v. JOINT MOTION FOR THE AWARD AND PAYMENT OF ATTORNEY 14 MARTIN O’MALLEY, Commissioner of FEES AND EXPENSES PURSUANT Social Security, 15 TO THE EQUAL ACCESS TO Defendant. JUSTICE ACT, 28 U.S.C. § 2412(d) 16 AND COSTS PURSUANT TO 28 17 U.S.C. § 1920
18 [ECF No. 14] 19 20 Before the Court is the parties’ Joint Motion for the Award and Payment of Attorney 21 Fees and Expenses Pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412(d) and 22 Costs Pursuant To 28 U.S.C. § 1920 (“Joint Motion”). (ECF No. 14.) For the following 23 reasons, the Joint Motion is GRANTED IN PART. 24 I. BACKGROUND 25 On April 22, 2024, Plaintiff Rudy T. (“Plaintiff”) filed a complaint pursuant to 26 42 U.S.C. § 405(g) seeking judicial review of a decision by the Commissioner of Social 27 Security (the “Commissioner”), denying his application for benefits under the Social 28 1 Security Act, Titles II and XVI. (ECF No. 1.) The Commissioner filed the Administrative 2 Record on June 21, 2024. (ECF No. 9.) 3 On July 9, 2024, the parties filed a joint motion for voluntary remand pursuant to 4 sentence four of 42 U.S.C. § 405(g). (ECF No. 11.) The Court granted the joint motion, 5 remanded the matter for further administrative proceedings pursuant to sentence four of 6 42 U.S.C. § 405(g), and directed the Clerk of Court to enter a final judgment in favor of 7 Plaintiff, reversing the final decision of the Commissioner. (ECF No. 12.) 8 On October 3, 2024, the parties filed the present Joint Motion requesting the Court 9 award Plaintiff attorney fees and expenses in the amount of $1,499.37. (ECF No. 14 at 1.) 10 This amount represents compensation for all legal services rendered on behalf of Plaintiff 11 by counsel in connection with this action. (Id.) 12 II. THRESHOLD ISSUE OF TIMELINESS 13 The prevailing party is eligible to seek attorney’s fees within thirty days of final 14 judgment in the action. 28 U.S.C. § 2412(d)(1)(B). “A sentence four remand becomes a 15 final judgment, for purposes of attorneys’ fees claims brought pursuant to the EAJA, upon 16 expiration of the time for appeal.” Akopyan v. Barnhart, 296 F.3d 852, 854 (9th Cir. 2002) 17 (internal citation omitted) (citing Shalala v. Schaefer, 509 U.S. 292, 297 (1993). Under 18 Federal Rule of Appellate Procedure 4(a)(1)(B), the time for appeal expires sixty days after 19 entry of judgment if one of the parties is a United States officer sued in an official capacity. 20 Therefore, a motion for attorney’s fees filed after a sentence four remand is timely if filed 21 within thirty days after Rule 4(a)’s 60-day appeal period has expired. Hoa Hong Van v. 22 Barnhart, 483 F.3d 600, 607 (9th Cir. 2007). 23 Here, judgment was entered on July 10, 2024. (ECF No. 13.) The parties filed the 24 Joint Motion on October 3, 2024, within thirty days after the 60-day appeal period had 25 expired. (ECF No. 14.) The Court therefore finds the Joint Motion timely. 26 III. DISCUSSION 27 A litigant is entitled to attorney’s fees under the EAJA if: “[A] he is the prevailing 28 party; [B] the government fails to show that its position was substantially justified or that 1 special circumstances make an award unjust; and [C] the requested fees and costs are 2 reasonable.” Carbonell v. I.N.S., 429 F.3d 894, 898 (9th Cir. 2005) (citing Perez–Arellano 3 v. Smith, 279 F.3d 791, 793 (9th Cir. 2002)); see also 28 U.S.C. § 2412(d)(1)(A). The 4 Court will address these elements in turn. 5 A. Prevailing party 6 “A plaintiff who obtains a sentence four remand” under 42 U.S.C. § 405(g), even 7 when further administrative review is ordered, “is considered a prevailing party for 8 purposes of attorneys’ fees.” Akopyan, 296 F.3d at 854 (citing Schaefer, 509 U.S. at 297– 9 98, 301–02). Here, Plaintiff is the prevailing party because the Court granted the joint 10 motion for voluntary remand, entered judgment in his favor, reversed the decision of the 11 Commissioner, and remanded the matter for further administrative proceedings. (See ECF 12 Nos. 11, 12.) 13 B. Substantial Justification 14 It is the Commissioner’s burden to prove that his position, both in the underlying 15 administrative proceedings and in the subsequent litigation, was substantially justified 16 under 28 U.S.C. § 2412(d)(1)(A). Meier v. Colvin, 727 F.3d 867, 870 (9th Cir. 2013). 17 Here, the Commissioner makes no argument that his position was substantially justified. 18 Rather, the Commissioner filed a joint motion to voluntarily remand this case for further 19 administrative proceedings, and the instant fee request comes to the court by way of a joint 20 motion. See Ulugalu v. Berryhill, No. 17-CV-01087-GPC-JLB, 2018 WL 2012330, at *3 21 (S.D. Cal. Apr. 30, 2018). In Ulugalu, the court found that the Commissioner did not 22 demonstrate substantial justification for her position due to the very fact that she filed a 23 voluntary stipulation for remand and the matter was referred to an administrative law judge 24 to make a new determination as to the plaintiff’s disability—as did the Commissioner in 25 this action. Id. 26 The parties stipulate in their Joint Motion that “[t]his stipulation constitutes a 27 compromise settlement of [Plaintiff’s] request for EAJA attorney fees, expenses, and costs, 28 and does not constitute an admission of liability on the part of Defendant under the EAJA 1 or otherwise.” (ECF No. 14 at 2.) This, however, does not change the nature or 2 circumstances of the instant request. Despite the disclaimer, “the compromise nature of 3 the request is sufficient to find the second element met, given that ‘Defendant has stipulated 4 to the attorney[ ] fees and does not argue that the prevailing party’s position was 5 substantially unjustified.’” Dana F. v. Kijakazi, No. 20-cv-01548-AHG, 2022 WL 542881, 6 at *2 (S.D. Cal., Feb. 23, 2022) (quoting Krebs v. Berryhill, No. 16-cv-3096-JLS-BGS, 7 2018 WL 3064346, at *2 (S.D. Cal. Jun. 21, 2018)). For these reasons, the Court finds that 8 Plaintiff meets the second requirement. 9 C. Reasonableness of Hours 10 The parties attach Plaintiff’s counsel’s itemized list of hours and rates for this matter 11 to the Joint Motion. (ECF No. 14-1.) This list includes the hours billed and hourly rates 12 for attorney and paralegal work in this matter. “The most useful starting point for 13 determining the amount of a reasonable fee is the number of hours reasonably expended 14 on the litigation multiplied by a reasonable hourly rate.” Hensley v. Eckerhart, 461 U.S. 15 424, 433 (1983). The Court will discuss each in turn. 16 Beginning with the attorney hours billed on this matter, Plaintiff’s counsel lists a 17 total of 4.3 hours of attorney work, at a rate of $244.62 per hour. (ECF No. 14-1.) “Many 18 district courts have noted that twenty to forty hours is the range most often requested and 19 granted in social security cases.” Costa v. Comm’r of Soc. Sec. Admin., 690 F.3d 1132, 20 1136 (9th Cir. 2012); see also Hensley, 461 U.S. at 435 (“Where a plaintiff has obtained 21 excellent results, his attorney should recover a fully compensatory fee.”). Accordingly, the 22 Court finds the 4.3 total hours billed by Plaintiff’s counsel to be reasonable, especially in 23 light of Plaintiff’s results in the case. 24 Plaintiff further asserts 2.5 hours of paralegal work on this matter. (ECF No. 14-1.) 25 Under the EAJA, attorney’s fees should not be awarded for work on merely clerical tasks, 26 including when completed by paralegals. See Missouri v. Jenkins, 491 U.S. 274, 288 n.10 27 (1989) (“[P]urely clerical or secretarial tasks should not be billed at a paralegal rate.”); see 28 Nadarajah v. Holder, 569 F.3d 906, 921 (9th Cir. 2009); Rosemary G. V. v. Saul, No. 3:19- 1 CV-00715-RBM, 2020 WL 6703123, at *4 (S.D. Cal. Nov. 12, 2020) (“. . . time spent by 2 a paralegal on clerical matters is not recoverable, as this is to be subsumed in law firm 3 overhead rather than billed at paralegal rates”) (citing Nadarajah, 569 F.3d at 906). Purely 4 clerical tasks include “filing, transcript, and document organization.” Nadarajah, 569 F.3d 5 at 921; see also Rosemary G. V., 2020 WL 6703123, at *4 (“Receipt of a court order or 6 case filing is also clerical in nature.” (internal citations omitted)). Such tasks also include 7 drafting and preparing documents related to service of process. Stella M. v. Kijakazi, 22- 8 cv-00109-AHG, 2023 WL 8238984 at *3 (S.D. Cal., Apr. 27, 2023) (quoting Henderson 9 v. Comm’r of Soc. Sec., 1:20-cv-0562-JLT, 2021 WL 2457540 at *3 (E.D. Cal. Jun. 16, 10 2021). Here, the Court has reviewed the description of tasks completed by the paralegals 11 in this matter and finds that the tasks identified are sufficiently substantive as to not be 12 purely clerical. 13 D. Reasonableness of Hourly Rate 14 The EAJA provides that the court may award reasonable attorney fees “based upon 15 prevailing market rates for the kind and quality of the services furnished,” but that “attorney 16 fees shall not be awarded in excess of $125 per hour unless the court determines that an 17 increase in the cost of living or a special factor, such as the limited availability of qualified 18 attorneys for the proceedings involved, justifies a higher fee.” 28 U.S.C. § 2412(d)(2)(A); 19 Nadarajah, 569 F.3d at 911. The statutory maximum EAJA rate for work performed in 20 2023 in the Ninth Circuit, factoring in increases in the cost of living, was $244.62. See 21 United Sates Courts for the Ninth Circuit, Statutory Maximum Rates Under the Equal 22 Access to Justice Act, https://www.ca9.uscourts.gov/attorneys/statutory-maximum-rates/ 23 (last visited Oct. 4, 2024). When no new rate has been posted for the time period in which 24 work was performed, the courts are to apply the rate for the previous period. Id. As no 25 new rate has been posted for 2024, the Court will rely on the 2023 rate. 26 Here, Plaintiff’s counsel’s hourly rate matches exactly the Ninth Circuit’s EAJA 27 hourly attorney rate. (ECF No. 14-1.) Accordingly, the Court finds that the hourly rate 28 billed by counsel is reasonable. See Roland S. v. Saul, No. 3:20-cv-01068-AHG, 2021 WL 1 ||4081567, at *3 (S.D. Cal. Sept. 7, 2021) (finding hourly rates consistent with the Ninth 2 || Circuit’s EAJA rates to be reasonable). 3 The Court finds, however, that Plaintiff's paralegal rates are not reasonable. Plaintiff 4 || assigns an hourly rate of $179.00 for paralegal work. (ECF No. 14-1.) District Courts in 5 ||the Southern District of California have found an hourly rate of $143.00 reasonable for 6 paralegals and have reduced paralegal rates that are even slightly above that. See 7 || Jacqueline Q. v. Kijakazi, No. 3:21-cv-00405-AHG, 2022 WL 17884451, at *3 (S.D. Cal. 8 || Dec. 23, 2022) (reducing the requested paralegal rate of $150.00 per hour to $143.00 per 9 hour); Roland, 2021 WL 4081567, at *3; Victoria C. v. Kijakazi, 3:23-cv-01030-JLB, 2023 10 || WL 5737788, at *3 (S.D. Cal. Sept. 5, 2023). The Joint Motion provides no support or 11 |}argument for the Court’s deviation from this rate. Therefore, the Court will not deviate 12 || from the accepted local rate and accordingly reduces the paralegal rate to $143.00 per hour. 13 CONCLUSION 14 Based on the foregoing, the Court GRANTS IN PART the parties’ Joint Motion. 15 || Considering the Court’s rate reduction as described above, the Court AWARDS Plaintiff 16 || fees in the amount of $1,409.37 which is calculated as follows: 4.3 hours of attorney work 17 || at a rate of $244.62 per hour, for a total of $1,051.87; and 2.5 hours of paralegal work at a 18 || rate of $143.00 per hour, for a total of $357.50. This amounts to a total of $1,409.37. 19 IT IS SO ORDERED. 20 Dated: October 9, 2024 -
n. Jill L. Burkhardt 22 ited States Magistrate Judge 23 24 25 26 27 28