(SS) Howell v. Commissioner of Social Security ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DIANA MAE HOWELL, No. 2:21-cv-0589 DB 12 Plaintiff, 13 v. ORDER 14 KILOLO KIJAKAZI, Acting Commissioner of Social Security, 15 16 Defendant. 17 18 This matter is before the court on plaintiff’s motion for attorney’s fees pursuant to the 19 Equal Access to Justice Act (“EAJA”).1 (ECF No. 26.) Plaintiff brought this action seeking 20 judicial review of a final administrative decision denying plaintiff’s application for Disability 21 Insurance Benefits under Title II of the Social Security Act. (ECF No. 1.) On May 27, 2022, the 22 Court granted the parties’ stipulated judgment for plaintiff and remanded this matter for further 23 proceedings. (ECF No. 19.) On August 26, 2022, plaintiff filed a motion seeking attorney’s fees 24 in the amount of $11,157.26, pursuant to a contingency fee agreement. (ECF No. 22.) Defendant 25 did not file a timely opposition to plaintiff’s motion. 26 //// 27 1 Both parties have previously consented to Magistrate Judge jurisdiction over this action 28 pursuant to 28 U.S.C. § 636(c). (See ECF Nos. 7 & 10.) 1 STANDARDS 2 The EAJA provides that “a court shall award to a prevailing party . . . fees and other 3 expenses . . . incurred by that party in any civil action . . . brought by or against the United States . 4 . . unless the court finds that the position of the United States was substantially justified or that 5 special circumstances make an award unjust.” 28 U.S.C. § 2412(d)(1)(A); see also Gisbrecht v. 6 Barnhart, 535 U.S. 789, 796 (2002). “It is the government’s burden to show that its position was 7 substantially justified or that special circumstances exist to make an award unjust.” Gutierrez v. 8 Barnhart, 274 F.3d 1255, 1258 (9th Cir. 2001). 9 A “party” under the EAJA is defined as including “an individual whose net worth did not 10 exceed $2,000,000 at the time the civil action was filed[.]” 28 U.S.C. § 2412(d)(2)(B)(i). The 11 term “fees and other expenses” includes “reasonable attorney fees.” 28 U.S.C. § 2412(d)(2)(A). 12 “The statute explicitly permits the court, in its discretion, to reduce the amount awarded to the 13 prevailing party to the extent that the party ‘unduly and unreasonably protracted’ the final 14 resolution of the case.” Atkins v. Apfel, 154 F.3d 986, 987 (9th Cir. 1998) (citing 28 U.S.C. §§ 15 2412(d)(1)(C) & 2412(d)(2)(D)). 16 A party who obtains a remand in a Social Security case is a prevailing party for purposes 17 of the EAJA. Shalala v. Schaefer, 509 U.S. 292, 300-01 (1993) (“No holding of this Court has 18 ever denied prevailing-party status . . . to a plaintiff who won a remand order pursuant to sentence 19 four of § 405(g) . . . , which terminates the litigation with victory for the plaintiff.”). “An 20 applicant for disability benefits becomes a prevailing party for the purposes of the EAJA if the 21 denial of her benefits is reversed and remanded regardless of whether disability benefits 22 ultimately are awarded.” Gutierrez, 274 F.3d at 1257. 23 ANALYSIS 24 Here, the Court finds that plaintiff is the prevailing party, that plaintiff did not unduly 25 delay this litigation, and that plaintiff’s net worth did not exceed two million dollars when this 26 action was filed. (ECF No. 2.) With respect to substantial justification, “[s]ubstantial 27 justification means ‘justified in substance or in the main—that is, justified to a degree that could 28 satisfy a reasonable person.’” Tobeler v. Colvin, 749 F.3d 830, 832 (9th Cir. 2014) (quoting 1 Meier v. Colvin, 727 F.3d 867, 870 (9th Cir. 2013)). “Put differently, the government’s position 2 must have a ‘reasonable basis both in law and fact.’” Meier, 727 F.3d at 870 (quoting Pierce v. 3 Underwood, 487 U.S. 552, 565 (1988)). “‘[T]he position of the United States includes both the 4 government’s litigation position and the underlying agency action.’” Campbell v. Astrue, 736 5 F.3d 867, 868 (9th Cir. 2013) (quoting Meier, 727 F.3d at 870); see also Shafer v. Astrue, 518 6 F.3d 1067, 1071 (9th Cir. 2008) (“the relevant question is whether the government’s decision to 7 defend on appeal the procedural errors committed by the ALJ was substantially justified”). “In 8 determining whether a party is eligible for fees under EAJA, the district court must determine 9 whether the government’s position regarding the specific issue on which the district court based 10 its remand was ‘substantially justified’—not whether the ALJ would ultimately deny disability 11 benefits.” Gardner v. Berryhill, 856 F.3d 652, 656 (9th Cir. 2017). 12 As noted above, “[i]t is the government’s burden to show that its position was 13 substantially justified.” Meier, 727 F.3d at 870. Here, there is no basis for the Court to find that 14 the government’s position was substantially justified. 15 The EAJA expressly provides for an award of “reasonable” attorney fees. 28 U.S.C. § 16 2412(d)(2)A). Under the EAJA, hourly rates for attorney fees have been capped at $125.00 since 17 1996, but district courts are permitted to adjust the rate to compensate for an increase in the cost 18 of living.2 See 28 U.S.C. § 2412(d)(2)(A); Sorenson v. Mink, 239 F.3d 1140, 1147-49 (9th Cir. 19 2001); Atkins, 154 F.3d at 987. Determining a reasonable fee “‘requires more inquiry by a 20 district court than finding the product of reasonable hours times a reasonable rate.’” Atkins, 154 21 F.3d at 988 (quoting Hensley v. Eckerhart, 461 U.S. 424, 434 (1983) (internal citations omitted)). 22 The district court must consider “‘the relationship between the amount of the fee awarded and the 23 results obtained.’” Id. at 989 (quoting Hensley, 461 U.S. at 437). 24 //// 25 2 In accordance with the decision in Thangaraja v. Gonzales, 428 F.3d 870, 876-77 (9th Cir. 2005), and Ninth Circuit Rule 39-1.6, the Ninth Circuit Court of Appeals maintains a list of the 26 statutory maximum hourly rates authorized by the EAJA, as adjusted annually. The rates may be 27 found on the Court’s website. See http://www.ca9.uscourts.gov. Here, plaintiff’s requested attorney rates are equal to the statutory maximum rates established by the Ninth Circuit. (ECF 28 No. 22 at 4.) 1 Here, plaintiff’s fee motion seeks compensation for 46.6 hours of attorney time for a total 2 award of $11,157.26. (Pl.’s Mot. (ECF No. 22) at 4.) The Court finds the hours expended to be 3 reasonable when compared to the time devoted to similar tasks by counsel in like social security 4 appeals coming before this court. See Clark v. Colvin, No. 2:14-CV-0851 DB, 2016 WL 5 4179803, at *4 (E.D. Cal. Aug. 8, 2016) (finding 67.25 hours to be a reasonable amount of time); 6 Boulanger v. Astrue, No. CIV S-07-0849 DAD, 2011 WL 4971890, at *2 (E.D. Cal. Oct. 19, 7 2011) (finding 58 hours to be a reasonable amount of time); Watkins v. Astrue, No. CIV S-06- 8 1895 DAD, 2011 WL 4889190, at *2 (E.D. Cal. Oct. 13, 2011) (finding 62 hours to be a 9 reasonable amount of time); Vallejo v. Astrue, No. 2:09-cv-03088 KJN, 2011 WL 4383636, at *5 10 (E.D. Cal. Sept. 20, 2011) (finding 62.1 hours to be a reasonable amount of time); see also Costa 11 v. Commissioner of Social Sec. Admin., 690 F.3d 1132, 1137 (9th Cir. 2012) (“District courts 12 may not apply de facto caps limiting the number of hours attorneys can reasonably expend on 13 ‘routine’ social security cases.”). See generally Moreno v. City of Sacramento, 534 F.3d 1106, 14 1112 (9th Cir. 2008) (“By and large, the court should defer to the winning lawyer’s professional 15 judgment as to how much time he was required to spend on the case; after all, he won, and might 16 not have, had he been more of a slacker.”). 17 Accordingly, after carefully reviewing the record and the pending motion, the Court 18 declines to conduct a line-by-line analysis of counsel’s billing entries. See, e.g., Commissioner, 19 I.N.S. v. Jean, 496 U.S. 154, 161-62 (1990) (“the EAJA—like other fee-shifting statutes—favors 20 treating a case as an inclusive whole, rather than as atomized line-items”); Stewart v. Sullivan, 21 810 F. Supp. 1102, 1107 (D. Haw. 1993); Duran v. Colvin, No. 2:11-cv-2978 DAD, 2013 WL 22 5673415, at *2 (E.D. Cal. Oct. 17, 2013). 23 However, an attorney fee award under the EAJA is payable to the litigant and is therefore 24 subject to a government offset to satisfy any pre-existing debt owed to the United States by the 25 claimant. Astrue v. Ratliff, 560 U.S. 586, 592-93 (2010). Subsequent to the decision in Ratliff, 26 some courts have ordered payment of the award of EAJA fees directly to plaintiff’s counsel 27 pursuant to plaintiff’s assignment of EAJA fees, provided that the plaintiff has no debt that 28 requires offset. See Blackwell v. Astrue, No. CIV 08-1454 EFB, 2011 WL 1077765, at *5 (E.D. 1 | Cal. Mar. 21, 2011); Dorrell v. Astrue, No. CIV 09-0112 EFB, 2011 WL 976484, at *2-3 (E.D. 2 | Cal. Mar. 17, 2011); Calderon v. Astrue, No. 1:08-cv-01015 GSA, 2010 WL 4295583, at *8 (E.D. 3 | Cal. Oct. 22, 2010); Castaneda v. Astrue, No. EDCV 09-1850-OP, 2010 WL 2850778, at *3 4 | (C.D. Cal. July 20, 2010). The Court will incorporate such a provision in this order. 5 CONCLUSION 6 Accordingly, IT IS HEREBY ORDERED that: 7 1. Plaintiffs motion for attorney fees under the Equal Access to Justice Act (ECF No. 22) 8 | is granted; 9 2. Plaintiff is awarded $11,157.26 in attorney fees and cost under 28 U.S.C. § 2412(d); 10 | and 11 3. Defendant shall determine whether plaintiff's EAJA attorney’s fees are subject to any 12 | offset permitted under the United States Department of the Treasury’s Offset Program and, if the 13 | fees are not subject to an offset, shall honor plaintiff's assignment of EAJA fees and shall cause 14 | the payment of fees to be made directly to plaintiff's counsel pursuant to the assignment executed 15 | by plaintiff. 16 | Dated: November 3, 2022 17 18 19 -BORAH BARNES UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 | DLB:6 35 DB\orders\orders.soc sec\howell233 1 .caja.ord 26 27 28