(SS) Hernandez v. Commissioner of Social Security ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MARIA TERESA HERNANDEZ, Case No. 1:21-cv-00036-CDB 12 Plaintiff, ORDER ON STIPULATION AWARDING PAYMENT OF ATTORNEY FEES AND 13 v. EXPENSES PURSUANT TO THE EQUAL ACCESS TO JUSTICE ACT, 28 U.S.C. § 14 KILOLO KIJAKAZI, Acting Commissioner 2412(d) of Social Security, 15 (Doc No. 28) Defendant. 16 17 18 Pending before the Court is the parties’ stipulated motion for an award and payment of 19 attorney fees and expenses pursuant to the equal access to justice act. (Doc. 28). The parties 20 agree to an award of attorney’s fees and expenses to Plaintiff Maria Teresa Hernandez’s 21 (“Plaintiff”) counsel in the amount of $8,400.00 pursuant to the Equal Access to Justice Act 22 (“EAJA”) 28 U.S.C. § 2412, and no costs under 28 U.S.C. § 1920. Id. 23 On November 10, 2022, the Court granted the parties’ stipulated motion for a remand and 24 remanded the case pursuant to sentence four of 42 U.S.C. § 405(g) to the Commissioner for 25 further administrative proceedings. (Doc. 26). Judgment was entered the same day. (Doc. 27). 26 Plaintiff now requests an award of attorney fees and expenses as the prevailing party. (Doc. 28); 27 see Shalala v. Schaefer, 509 U.S. 292, 300-02 (1993) (concluding that a party who wins a 1 sentence-four remand order under 42 U.S.C. § 405(g) is a prevailing party). The Commissioner 2 did not oppose the requested relief. (Doc. 28). 3 The EAJA provides for an award of attorney fees to private litigants who both prevail in 4 civil actions (other than tort) against the United States and timely file a petition for fees. 28 5 U.S.C. § 2412(d)(1)(A). Under the EAJA, a court shall award attorney fees to the prevailing 6 party unless it finds the government’s position was “substantially justified or that special 7 circumstances make such an award unjust.” Id. Here, the government did not show its position 8 was substantially justified and the Court finds there are not special circumstances that would 9 make an award unjust. Moreover, the government does not oppose Plaintiff’s stipulated request. 10 See Sanchez v. Berryhill, No. 1:16-cv-01081-SKO, 2018 WL 509817, at *2 (E.D. Cal. Jan. 23, 11 2018) (finding position of the government was not substantially justified in view of the 12 Commissioner’s assent to remand); Knyazhina v. Colvin, No. 2:12–cv–2726 DAD, 2014 WL 13 5324302, at *1 (E.D. Cal. Oct. 17, 2014) (same). 14 Plaintiff’ requests an award of $8,400.00 in EAJA fees. (Doc. 28). The Ninth Circuit 15 maintains a list of the statutory maximum hourly rates authorized by the EAJA, adjusted for 16 increases in the cost of living, on its website. See Thangaraja v. Gonzales, 428 F.3d 870, 876- 17 77 (9th Cir. 2005). Even assuming Plaintiff’s counsel seeks the published maximum rate of 18 $234.95 for 2022,1 the requested award would amount to almost 36 hours of attorney time (not 19 accounting for any paralegal time expended). The Court finds this reasonable and commensurate 20 with the number of hours an attorney would need to have spent reviewing the voluminous 21 certified administrative record in this case (Doc. 11) and preparing the type of summary judgment 22 motion Plaintiff’s counsel prepared and filed (raising four disputed legal issues) (Doc. 15). With 23 respect to the results obtained, Plaintiff’s counsel obtained a favorable judgment remanding the 24 case for further administrative proceedings. (Docs. 26-27). 25 EAJA fees, expenses, and costs are subject to any offsets allowed under the Treasury Offset 26 27 1 Statutory Maximum Rates Under the Equal Access to Justice, available at https://www.ca9.uscourts.gov/attorneys/statutory-maximum-rates/ (last visited February 9, 1 | Program (“TOP”), as discussed in Astrue v. Ratliff, 560 U.S. 586 (2010). If the Commissioner 2 | determines upon effectuation of this order that Plaintiff's EAJA fees are not subject to any offset 3 | allowed under the TOP, the fees shall be delivered or otherwise transmitted to Plaintiff’s counsel. 4 Accordingly, it is HEREBY ORDERED: 5 1. Plaintiff's stipulated request for the award and payment of attorney fees and expenses 6 pursuant to the EAJA (Doc. 28) is GRANTED; and 7 2. The Commissioner is directed to pay to Plaintiff as the prevailing party attorney fees in 8 the amount of $8,400.00. Unless any offsets are applied under TOP, the government shall 9 make payment of the fees to Plaintiff's counsel Jonathan O. Pefia, in accordance with 10 Plaintiff's assignment of fees and subject to the terms of the stipulation. 11 [T IS SO ORDERED. Dated: February 9, 2023 | ) Ww Vv RR 13 UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28