Truong v. O' Malley

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 Case No.: 24-cv-1022-RSH-MMP DORIS V.T.,

12 Plaintiff, ORDER AWARDING ATTORNEYS’ 13 FEES AND COSTS v. 14 [ECF No. 29] FRANK BISIGNANO, Commissioner of 15 Social Security,

16 Defendant. 17

18 Pending before the Court is a motion by plaintiff Doris V.T. for an award of fees and 19 costs pursuant to the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d). ECF No. 20 29. On May 23, 2025, the Court granted summary judgment to Plaintiff, vacated the 21 decision of the Administrative Law Judge (“ALJ”) denying benefits to Plaintiff, and 22 remanded the action for further proceedings. ECF No. 27. As set forth below, the Court 23 grants in part and denies in part Plaintiff’s motion, awarding fees in the amount of 24 $20,844.37 and costs in the amount of $405. 25 26 27 1 I. PROCEDURAL HISTORY 2 On March 29, 2013, Plaintiff filed an application for supplemental security income 3 benefits (“SSI”) under Title XVI of the Social Security Act, alleging disability beginning 4 on September 1, 1997. Administrative Record (“AR”) 22. Her claim was denied initially 5 and again upon reconsideration. AR 406. On August 30, 2016, Plaintiff’s claim was heard 6 by an administrative law judge (“ALJ”). AR 406. On September 29, 2016, the ALJ denied 7 Plaintiff’s claim. AR 32. On August 22, 2017, the Appeals Council denied review of the 8 ALJ’s ruling. AR 1. 9 Plaintiff appealed the ALJ’s decision to the U.S. District Court for the Southern 10 District of California. On November 27, 2018, the district court reversed and remanded the 11 matter for further administrative proceedings pursuant to sentence four of 42 U.S.C. § 12 405(g). AR 471, 477. In February 2020, a second ALJ dismissed Plaintiff’s claim based on 13 her failure to appear; in January 2023, the Appeals Council vacated that dismissal and 14 remanded the case. AR 536. After a hearing in October 2023, a third ALJ issued a decision 15 on April 2, 2024 finding that Plaintiff was not disabled. AR 421 (the “ALJ Decision”). 16 On June 11, 2024, Plaintiff filed this civil action seeking review of the ALJ Decision. 17 ECF No. 1. 18 On December 21, 2024, Plaintiff filed a motion for summary judgment. ECF No. 16. 19 On March 14, 2025, the Court entered an order identifying certain deficiencies in 20 the summary judgment briefing. ECF No. 20. The Court provided a schedule for filing new 21 briefs addressing those deficiencies. Id. at 5. 22 Plaintiff did not timely file a new brief, but instead late-filed two versions of a brief, 23 each significantly exceeding the page limits provided under the Local Rules. ECF Nos. 21, 24 22. The Court struck the non-compliant briefing and indicated that it would take the 25 original briefing under submission, taking due note of the uncorrected deficiencies the 26 Court had identified. ECF No. 23 at 2. Plaintiff thereafter filed ex parte applications to 27 accept the stricken briefing, which the Court denied. ECF No. 26. 1 On May 23, 2025, the Court granted summary judgment to Plaintiff. ECF No. 27. 2 The Court determined that the ALJ, in determining that Plaintiff was not disabled, relied 3 extensively on a report by the San Diego Regional Center (the “SDRC Report”). The Court 4 stated: 5 As contained in the Administrative Record, the SDRC Report is missing pages. It contains a “Page 2” and a “Page 4,” but no other 6 numbered pages. AR 716-21. The “Page 2” begins and ends mid- 7 sentence, and no other pages appear to contain text corresponding to the preceding or following pages. The complete SDRC Report is 8 therefore not before the Court. The pages in the record do not appear 9 to identify the author of the report. Defendant represents that the SDRC Report was also incomplete as offered by Plaintiff in the 10 proceedings before the ALJ. ECF No. 18 at 4-5. Plaintiff’s reply brief 11 does not dispute this. Neither the ALJ nor Plaintiff’s attorney noted during the proceedings below the incompleteness of this report. 12

13 Id. at 7. The Court went on to address the extent to which the ALJ had relied on this report 14 in reaching conclusions that Plaintiff challenged in her motion for summary judgment. Id. 15 at 7-9. The Court determined that, for each of these issues, the incomplete SDRC report 16 triggered a duty on the part of the ALJ to further develop the record. Id. at 9. 17 The Court accordingly remanded the case for further administrative proceedings 18 pursuant to sentence four of 42 U.S.C. § 405(g). Id. at 1, 11. In doing so, the Court denied 19 Plaintiff’s request to order an award of benefits, and also denied Plaintiff’s request—made 20 for the first time in her reply brief—for interim benefits. Id. at 10-11. 21 On June 8, 2025, Plaintiff filed her motion for fees under the EAJA. ECF No. 29. 22 Defendant opposes the motion. The motion has been fully briefed. ECF Nos. 31 23 (opposition), 32 (reply). 24 II. LEGAL STANDARD 25 The EAJA provides that “a court may award reasonable fees and expenses of 26 attorneys, in addition to the costs which may be awarded pursuant to subsection (a), to the 27 prevailing party in any civil action brought by or against the United States or any agency 1 or any official of the United States acting in his or her official capacity in any court having 2 jurisdiction of such action.” 28 U.S.C. § 2412(b). The Court may in its discretion decline 3 to award fees where it finds “that the position of the United States was substantially 4 justified or that special circumstances make an award unjust.” Id. § 2412(d)(1)(A). “The 5 amount of attorneys’ fees awarded under EAJA must be reasonable.” Nadarajah v. Holder, 6 569 F.3d 906, 910 (9th Cir. 2009). 7 In short, “[u]nder [the] EAJA, a litigant is entitled to attorney’s fees and costs if: (1) 8 he is the prevailing party; (2) the government fails to show that its position was 9 substantially justified or that special circumstances make an award unjust; and (3) the 10 requested fees and costs are reasonable.” Carbonell v. I.N.S., 429 F.3d 894, 898 (9th Cir. 11 2005) (citing Perez–Arellano v. Smith, 279 F.3d 791, 793 (9th Cir. 2002)). 12 To determine a reasonable fee award under the EAJA, courts in the Ninth Circuit 13 apply the lodestar method, multiplying the number of hours reasonably spent on litigation 14 by the reasonable hourly rate. Costa v. Comm’r of Soc. Sec. Admin., 690 F.3d 1132, 1135 15 (9th Cir. 2012) (citing Hensley v. Eckerhart, 461 U.S. 424, 433 (1983) (citations omitted)). 16 A request for fees must be supported by “an itemized statement from any attorney ... stating 17 the actual time expended and the rate at which fees and other expenses were computed.” 18 Id. § 2412(d)(1)(B). The hourly rate is capped by statute unless the Court determines an 19 increase in cost of living or another special factor justifies a higher fee. 28 U.S.C. § 20 2412(d)(2)(A). 21 The Court “retain[s] substantial discretion in fixing the amount of an EAJA award.” 22 Comm’r, I.N.S. v. Jean, 496 U.S. 154, 163 (1990). The Court must explain any significant 23 reduction in counsel’s requested fees. Costa v. Comm’r of Soc. Sec. Admin., 690 F.3d 1132, 24 1135 (9th Cir. 2012). 25 // 26 // 27 1 III. DISCUSSION 2 A. Amounts Claimed 3 The Court begins by reviewing the total amounts sought by Plaintiff in her motion. 4 Plaintiff’s motion concludes: “The Court should award plaintiff $37,740.82 in fees and 5 $995 in costs.” ECF No. 29-1 at 25. Her accompanying declaration states that the fee 6 request is based on 128.1 hours of work. ECF No. 29-6 ¶ 8. Plaintiff’s reply brief concludes 7 by requesting an additional “$2,352 for the 8.0 hours spent on this reply.” ECF No. 32 at 8 12. The Court therefore construes her motion as seeking a total of $40,092.82 in attorneys’ 9 fees (based on 136.1 hours of work) plus $995 in costs.1 10 Plaintiff seeks recovery of fees at an hourly rate of $294.62 for work performed in 11 2024 and 2025. ECF No. 29-6 ¶ 9. The applicable maximum rate under the EAJA in the 12 Ninth Circuit was $251.84 in 2024; that rate is also applicable for 2025 until a new rate is 13 posted. Thus, Plaintiff effectively seeks an enhancement of $42.78 per hour beyond the 14 statutory maximum. Plaintiff asserts that this enhancement is warranted based on the 15 Vietnamese language skills, cultural familiarity, and Social Security law specialization of 16 her counsel, Alexandra Manbeck. ECF No. 29-6 ¶ 8. 17 18 19 20 1 Plaintiff’s Reply brief seems to request a slightly lower amount for fees up to 21 drafting the reply brief; while her opening brief requested $37,740.82 in fees for this work, 22 the reply brief instead requests $37,632, without accounting for this difference. Compare ECF No. 29-1 at 25 with ECF No. 32 at 12. 23 Plaintiff’s motion recites that she is requesting $995 in costs. ECF No. 29-1 at 23 24 (“EAJA Permits an Award for Court Costs and Expenses in the Amount of $995”) (“Petitioner submits a request for reimbursement of total costs and expenses of $995”); id. 25 at 25 (“The Court should award plaintiff … $995 in costs.”). However, other portions of 26 her briefing or declaration appear to claim different and higher amounts. See ECF No. 29- 1 at 23-24 (“Accordingly, the Court should award Plaintiff $1,080 in costs and expenses 27 1 The Parties agree that Plaintiff was the prevailing party here. See also Akopyan v. 2 Barnhart, 296 F.3d 852, 854 (9th Cir. 2002) (“A plaintiff who obtains a sentence four 3 remand is considered a prevailing party for purposes of attorneys’ fees.”). 4 Defendant does not argue that its position was “substantially justified,” but argues 5 that “special circumstances” warrant limiting the award of fees here or denying it 6 altogether. Defendant also challenges the reasonableness of certain claimed fees and costs. 7 B. Special Circumstances and Reasonableness 8 Defendant asserts that “special circumstances” exist here warranting the reduction 9 or denial of fees, and contends that in any case, certain components of the fees claimed are 10 unreasonable. Although the Court declines to find special circumstances warranting the 11 denial of fees altogether, the Court reduces or disallows certain components of the fee 12 award, as set forth below. 13 Summary judgment briefing. Plaintiff seeks to recover fees associated with 28.75 14 hours spent on summary judgment briefing.2 See ECF No. 29-6 ¶ 7. The Court concludes 15 that special circumstances exist collectively warranting significant reduction in the hours 16 recoverable for this task. First, as the Court previously determined in its order of March 17 14, 2025, Plaintiff’s briefing was materially deficient in its organization and coherence. 18 ECF No. 20. Second, although Plaintiff is the “prevailing party” for purposes of this 19 motion, Plaintiff’s efforts on summary judgment motion practice did not yield a result for 20 Plaintiff that was any greater than the remand that Defendant offered during the course of 21 the litigation, which Plaintiff declined. See ECF No. 15. Third, the sole basis on which the 22 Court remanded the case—the ALJ’s failure to further develop the record and obtain the 23 24 25 2 These 28.75 hours include the time entry for 12/15/24 as to the 5.5 hours for “draft 26 memo for summary judgment”; the 12/16/24 entry for “Draft memo; review administrative record,” without distinguishing time spent on either task; and the 12/17/24, 12/18/24, 27 1 complete SDRC Report before relying extensively on that report—was not based on any 2 argument made by Plaintiff in her summary judgment briefing. Instead of arguing that the 3 SDRC Report was incomplete, she argued that the report was “inaccurate.” ECF No. 16 at 4 5. Furthermore, Plaintiff’s reply brief in support of her fees motion indicates that the reason 5 that report had been introduced in an incomplete fashion was that Plaintiff had hidden the 6 other pages. ECF No. 32 at 4 (“… Plaintiff admitted to hiding at times evidence of her 7 disability such as certain pages of the SDRC report causing her attorney to search her 8 voluminous file for the missing pages until Plaintiff admitted to hiding them and 9 apologized for her actions.”). Although this does not alter the Court’s conclusion that the 10 ALJ had a duty to develop the record, the Court concludes that an approximate 75% 11 reduction is warranted here, both under the special circumstances doctrine and as a matter 12 of reasonableness. See, e.g., Berry v. Comm’r of Soc. Sec., No. 20-cv-2972 (PKC), 2022 13 WL 4661529, at *2 (E.D.N.Y. Sept. 30, 2022) (finding “special circumstances” to reduce 14 hours where fees were expended on efforts that “achieved no appreciable advantage,” 15 among other factors); D.C. v. Kijakazi, No. 21-cv-380-NYW, 2023 WL 3321380, at *6 (D. 16 Colo. May 9, 2023) (finding “special circumstances” where plaintiff’s opening brief 17 “devoted barely more than a page” to the sole issue on which plaintiff prevailed). 18 Accordingly, the Court allows 7.25 hours for Plaintiff’s summary judgment briefing rather 19 than the 28.75 hours claimed. 20 Revised summary judgment briefing. Additionally, Plaintiff seeks to recover fees 21 associated with 14.35 hours spent in connection with drafting revised summary judgment 22 briefing pursuant to the Court’s direction on March 14, 2025.3 See ECF No. 29-6 ¶ 7. 23 24 3 These 14.35 hours include Plaintiff’s entries on 4/1/25 (“Search client’s record 1.5; 25 draft revision (4.75)”) and 4/6/25 (“Review adm. Record (3.35)[;] Prepare revision 26 (4.75)”). To the extent these entries include tasks other than drafting the amended briefing, those tasks—such as review of the administrative record—were presumably undertaken in 27 1 However, these efforts did not result in the timely filing of a compliant brief. Instead, 2 Plaintiff late-filed two materially non-conforming briefs, both of which were stricken by 3 the Court. ECF No. 23. Plaintiff did not, in advance of those filings, request leave to make 4 late or oversized filings. As a matter of reasonableness, the Court disallows recovery for 5 time spent on these tasks. 6 Post hoc motions for extension of time or for leave to file excess pages. Plaintiff 7 also seeks to recover fees associated with 11 hours spent on motions, after the briefs had 8 already been stricken, seeking post hoc permission to file late and oversized briefs.4 See 9 ECF No. 29-6 ¶ 7. In the Court’s view, these motions were cursory in nature. The Court 10 denied these motions as untimely and as unsupported by good cause. ECF No. 26. It would 11 be unreasonable to allow Plaintiff to recover fees for these unsuccessful motions, which 12 were occasioned by two sets of earlier errors by Plaintiff. The Court disallows recovery for 13 time spent on these tasks as well. 14 Preparation of status report. Plaintiff seeks to recover for time spent on preparing 15 a joint status report, as required by the U.S. Magistrate Judge in an earlier phase of the 16 case. Plaintiff claims a total of 21.5 hours related this task; two of the three entries also 17 include other tasks without distinguishing the time spent on each.5 ECF No. 29-6 ¶ 7. The 18 U.S. Magistrate Judge determined that Plaintiff failed to timely comply with the scheduling 19 order requiring settlement negotiations and the filing of a joint status report, and questioned 20 whether Plaintiff’s neglect was excusable. ECF No. 14 at 2-3. When the joint status report 21 was ultimately filed, it was one paragraph long in total. ECF No. 15. The Court concludes 22 that it would be unreasonable to allow Plaintiff to recover for more than one hour of time 23 24 to be something wholly unrelated to drafting the amended briefing, the Court cannot 25 discern from the billing entries what these activities might be, and disallows them. 26 4 These 11 hours relate to entries on 4/7/25. See ECF No. 29-6 ¶ 7. 5 These 21.5 hours include the entries on 10/1/24, 11/10/24, and 11/12/24. See ECF 27 1 spent on an untimely task that yielded such minimal output. Making some allowance for 2 the fact that two time entries also include an unspecified amount of work on other unrelated 3 tasks, the Court allows a total of 3.0 hours rather than the 21.5 hours claimed for these 4 entries. 5 Remaining hours claimed. In light of these reductions, the Court declines to make 6 any further reductions requested by Defendant. In making this decision, the Court takes 7 into account the fact that this is the third time that Plaintiff’s case has been remanded. The 8 Court allows Plaintiff recovery for 70.75 hours. 9 Defendant does not take issue with the enhanced hourly rate sought by Plaintiff, and 10 the Court concludes that that enhancement is warranted here in light of the Vietnamese 11 language skill of Plaintiff’s counsel, her related familiarity with Vietnamese culture, and 12 the manner in which this knowledge has facilitated her representation of Plaintiff in this 13 case since 2013. Indeed, in a previous appeal of this same case, in April 2019, the Court 14 approved an upward enhancement. See No. 17-cv-2179-BEN-RNB, Dkt. No. 35, at 5-6. 15 Accordingly, the Court computes attorneys’ fees at the requested rate of $294.62 per hour, 16 for 70.75 hours, for a total of $20,844.37. The Court declines in its exercise of discretion 17 to make any further adjustments to this amount as to the fees requested. 18 D. Costs and Expenses 19 The EAJA also allows for recovery of costs by the prevailing party. See 28 U.S.C. § 20 2412(d)(1)(A). As with attorneys’ fees, the claimant must present an itemized list. Id. § 21 2412(d)(1)(B). Here, the Court takes judicial notice of the $405 filing fee paid by Plaintiff, 22 ECF No. 7, and awards costs in that amount. Plaintiff’s remaining cost or expense requests, 23 which are conflicting in amount, are denied for lack of specificity and lack of supporting 24 documentation.6 25 26 6 Plaintiff’s reply brief also requests “$750 for paralegal services performed in 27 1 E. Payment of Award 2 Plaintiff requests that the EAJA award be paid to her counsel directly. See ECF No. 3 32-2. 4 The EAJA directs that courts “shall award to a prevailing party ... fees and other 5 expenses ... incurred by that party.” 28 U.S.C. § 2412(d)(1)(A). A fee award under the 6 EAJA is subject to an offset to satisfy any pre-existing debt to the United States by the 7 claimant. Astrue v. Ratliff, 560 U.S. 586, 593 (2010). Additionally, the Anti-Assignment 8 Act, 31 U.S.C. § 3727, provides that an assignment may be made only after certain formal 9 requirements are met. See Hill v. Comm’r of Soc. Sec., 428 F. Supp. 3d 253, 266 (E.D. Cal. 10 2019) (the Anti-Assignment Act “applies to an assignment of EAJA fees in a Social 11 Security Appeal for disability benefits.”). The Commissioner may waive the requirements 12 of the Anti-Assignment Act. United States v. Kim, 806 F.3d 1161, 1169 (9th Cir. 2015). 13 Subject to any offset in this case and the Commissioner’s waiver of the requirements 14 of the Anti-Assignment Act, the Court directs that the EAJA award be paid directly to 15 Plaintiff’s counsel. 16 IV. CONCLUSION 17 For the foregoing reasons, the Court GRANTS IN PART and DENIES IN PART 18 Plaintiff’s motion for fees and costs [ECF No. 29], and awards Plaintiff fees in the amount 19 of $20,844.37 plus costs in the amount of $405. 20 21 22 not mention this request. Plaintiff’s declaration submitted with her motion refers to “$800 23 in paralegal and delivery/translation services … to deliver court decisions and provide 24 translation to the plaintiff’s mother and brother throughout the course of litigation (2003- 2005).” ECF No. 29-6 ¶ 11. 25 The Court declines to award any amount for paralegal services, given that the request 26 is not set forth in Plaintiff’s opening brief, given the generalized yet conflicting explanations of this claim in the other two filings, and given the lack of any other 27 1 The Commissioner shall determine whether Plaintiff's EAJA award is subject to 2 || offset for federal debt, and payment shall be made less any appropriate offsets. If the 3 || Commissioner waives the requirements of the Anti-Assignment Act, payment shall be 4 ||made to Plaintiff's counsel, Alexandra Manbeck, at P.O. Box 827, State College, 5 || Pennsylvania 16804. Otherwise, payment shall be made to Plaintiff. 6 IT IS SO ORDERED. fekut ¢ Lous 7 Dated: August 5, 2025 g Hon. Robert S. Huie United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11