(SS) Few v. Commissioner of Social Security ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ERIC FEW, No. 2:19–cv–1491–KJN 12 Plaintiff, ORDER GRANTING PLAINTIFF’S MOTION FOR FEES UNDER THE EAJA 13 v. (ECF No. 23) 14 COMMISSIONER OF SOCIAL SECURITY, 15 Defendant. 16 17 Plaintiff Eric Few commenced this social security action on August 4, 2019. (ECF No. 1.) 18 On March 23, 2021, the court granted plaintiff’s motion for summary judgment, denied the 19 Commissioner’s cross-motion for summary judgment, remanded the action for further 20 administrative proceedings pursuant to sentence four of 42 U.S.C. § 405(g), and entered judgment 21 for plaintiff. (ECF Nos. 20, 21.) 22 Now pending before the court is plaintiff’s motion for attorneys’ fees pursuant to the 23 Equal Access to Justice Act (“EAJA”).1 (ECF No. 23.) The Commissioner filed a statement of 24 non-opposition. (ECF No. 25.) After careful consideration, the court GRANTS plaintiff’s 25 motion for EAJA fees. 26 /// 27 1 This matter is before the undersigned pursuant to 28 U.S.C. § 636 and Local Rule 302(c)(15). 28 All parties consented to magistrate judge jurisdiction. (ECF Nos. 7, 16.) 1 “The EAJA provides for the award of attorney’s fees to a party that prevails against the 2 United States in a proceeding for review of an agency action, unless the court finds ‘that the 3 position of the United States was substantially justified or that special circumstances make an 4 award unjust.’” Costa v. Comm’r of Soc. Sec. Admin., 690 F.3d 1132, 1135 (9th Cir. 2012) 5 (quoting 28 U.S.C. § 2412(d)(1)(A)). Here, plaintiff seeks $5,607.55 in attorneys’ fees for 27 6 hours spent in prosecution of the action in this court.2 (ECF No. 23 at 1.) 7 I. ENTITLEMENT TO EAJA FEES 8 The court finds—and the Commissioner does not dispute—that plaintiff is a prevailing 9 party because he successfully obtained a remand for further proceedings under sentence four of 10 42 U.S.C. § 405(g). Shalala v. Schaefer, 509 U.S. 292, 300-02 (1993). As for reasons to deny an 11 EAJA award, “[i]t is the government’s burden to show that its position was substantially justified 12 or that special circumstances exist to make an award unjust.” Gutierrez v. Barnhart, 274 F.3d 13 1255, 1258 (9th Cir. 2001); see Flores v. Shalala, 49 F.3d 562, 569 (9th Cir. 1995) (holding that 14 claimant is entitled to attorneys’ fees unless the government shows that its position “with respect 15 to the issue on which the court based its remand was ‘substantially justified’”). 16 A. Substantial Justification 17 “Substantial justification means ‘justified in substance or in the main—that is, justified to 18 a degree that could satisfy a reasonable person.’” Meier v. Colvin, 727 F.3d 867, 870 (9th Cir. 19 2013) (quoting Pierce v. Underwood, 487 U.S. 552, 565 (1988)). “Put differently, the 20 government’s position must have a ‘reasonable basis both in law and fact.’” Id. (quoting Pierce, 21 487 U.S. at 565). In determining substantial justification, the court reviews “both the 22 government’s litigation position and the underlying agency action giving rise to the civil action,” 23 which in the social security context is the ALJ’s decision. Id. A position does not have to be 24 correct to be substantially justified. Pierce, 487 U.S. at 566 n.2; see also Lewis v. Barnhart, 281 25 2 Plaintiff’s June 17, 2021 application for EAJA fees is timely, because it was filed within 30 days of the court’s March 23, 2021 judgment becoming final and non-appealable. See 28 U.S.C. 26 §§ 2412(d)(1)(B) (EAJA application due “within thirty days of final judgment”), 2412(d)(2)(G) 27 (“‘final judgment’ means a judgment that is final and not appealable . . . .”); Fed. R. App. P. 4(a)(1)(B) (60 days to file notice of appeal if one of the parties is the United States or a United 28 States agency, officer, or employee sued in official capacity). 1 F.3d 1081, 1083 (9th Cir. 2002). 2 Here, in light of the errors identified in the March 23, 2021 order and defendant’s lack of 3 opposition to the instant motion, the court cannot find that the government has shown its position 4 was substantially justified. See Gutierrez, 274 F.3d at 1258 (government’s burden to show 5 substantial justification). 6 B. Special Circumstances 7 The court is aware of no special circumstances that would make an award of EAJA fees 8 unjust in this case. Accordingly, plaintiff is entitled to an award of fees pursuant to the EAJA. 9 See 28 U.S.C. § 2412(d)(1)(A). 10 II. AWARD OF REASONABLE FEES 11 The EAJA directs the court to award a “reasonable” fee. 28 U.S.C. § 2412(d)(2)(A). In 12 determining whether a fee is reasonable, the court considers the reasonable hourly rate, the hours 13 expended, and the results obtained. See Commissioner, INS v. Jean, 496 U.S. 154, 163 (1990); 14 Hensley v. Eckerhart, 461 U.S. 424, 437 (1983); Atkins v. Apfel, 154 F.3d 986, 988 (9th Cir. 15 1998). 16 A. Hourly Rate 17 In computing the fee request, plaintiff’s counsel uses the maximum hourly rates for EAJA 18 fees published on the Ninth Circuit’s website: $205.25 for his work in 2019 and $207.78 for his 19 work in 2020. (ECF No. 23 at 1 n.1, 4.) See 28 U.S.C. § 2412(d)(2)(A); Thangaraja v. Gonzales, 20 428 F.3d 870, 876-77 (9th Cir. 2005); Ninth Circuit Rule 39-1.6. The court finds both rates 21 reasonable. 22 B. Hours Expended 23 Plaintiff’s counsel submitted a timesheet with entries broken down by various tasks 24 performed on the case, showing that he spent 1 hour on this case in 2019 and 26 hours in 2020. 25 (ECF No. 23 at 3-4.) The Commissioner does not contest the reasonableness of these hours, and 26 after an independent review of the time entries, the court finds the amount of time spent by 27 plaintiff’s counsel to be reasonable and properly supported by the time records. 28 /// 1 C. Results Obtained 2 Finally, given that plaintiff obtained a favorable judgment remanding the case for further 3 || administrative proceedings, the court concludes that the requested amount of fees is consistent 4 | with the result obtained. See Hensley, 461 U.S. at 435 (“Where a plaintiff has obtained excellent 5 || results, his attorney should recover a fully compensatory fee.”’). 6 Therefore, the court awards plaintiff EAJA attorneys’ fees in the amount of $5,607.55 7 | ($205.25 (1 hour x $205.25/hr) + $5,402.30 (26 hours x $207.78/hr) = $5,607.55). The court 8 | notes that plaintiff executed an assignment of EAJA fees to plaintiff's counsel. (ECF No. 23.1.) 9 | However, the EAJA award must be made by this court to plaintiff, and not to counsel. See Astrue 10 | v. Ratliff, 560 U.S. 586 (2010). Nevertheless, if the government determines that plaintiff does not 11 || owe a federal debt that qualifies for offset, payment may be made in the name of plaintiff's 12 | attorney. 13 ORDER 14 Accordingly, IT IS HEREBY ORDERED that: 15 1. Plaintiff's motion for attorneys’ fees under the EAJA (ECF No. 23) is GRANTED; and 16 2. Plaintiff is awarded attorneys’ fees in the total amount of $5,607.55 pursuant to the EAJA. 17 If the government determines that plaintiff does not owe a federal debt that qualifies for 18 offset, payment may be made in the name of plaintiff’s attorney. 19 || Dated: August 6, 2021 20 Aectl Aharon 21 KENDALL J. NE UNITED STATES MAGISTRATE JUDGE 22 23 few.1491 24 25 26 27 28