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

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MARY NICHOLS FOUCHT, Case No. 1:22-cv-00068-AWI-CDB 12 Plaintiff, ORDER ON STIPULATION AWARDING PAYMENT OF ATTORNEY FEES AND 13 v. EXPENSES PURSUANT TO THE EQUAL ACCESS TO JUSTICE ACT 14 COMMISSIONER OF SOCIAL SECURITY, (ECF No. 24) 15 Defendant. 16 17 18 Pending before the Court is the parties’ stipulated motion for award and payment of 19 attorney fees and expenses pursuant to the equal access to justice act. (ECF No. 24). The parties 20 agree to an award of attorney’s fees and costs to Plaintiff Mary Nichols Foucht’s (“Plaintiff”) 21 attorney, Jonathan Omar Peña, in the amount of $6,750.00 pursuant to the Equal Access to Justice 22 Act (“EAJA”). Id.; 28 U.S.C. § 2412. 23 On September 30, 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. (ECF No. 22). Judgment was entered the same day. (ECF 26 No. 23). Plaintiff now requests an award of attorney fees and expenses as the prevailing party. 27 (ECF No. 24); see Shalala v. Schaefer, 509 U.S. 292, 300-02 (1993) (concluding that a party who 1 wins a sentence-four remand order under 42 U.S.C. § 405(g) is a prevailing party). The 2 Commissioner did not oppose the requested relief. (ECF No. 24). 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) (finding position of the government not substantially 14 justified where the parties stipulated to a remand of the action to the Commissioner for a new 15 hearing). 16 Plaintiff requests an award of $6,750.00 in EAJA fees. (ECF No. 24). The Ninth Circuit 17 maintains a list of the statutory maximum hourly rates authorized by the EAJA, adjusted for 18 increases in the cost of living, on its website. See Thangaraja v. Gonzales, 428 F.3d 870, 876- 19 77 (9th Cir. 2005). Even assuming Plaintiff’s counsel seeks the published maximum rate of 20 $231.49 for 2022,1 the requested award would amount to approximately 29 hours of attorney 21 time (not accounting for any paralegal time expended). The Court finds this reasonable and 22 commensurate with the number of hours an attorney reasonably would need to have spent 23 reviewing the voluminous certified administrative record in this case (over 1,000 pages) and 24 preparing the type of summary judgment motion Plaintiff’s counsel prepared and filed (raising 25 three disputed legal issues). With respect to the results obtained, Plaintiff’s counsel obtained a 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 December 30, 1 | favorable judgment remanding the case for further administrative proceedings. 2 EAJA fees, expenses, and costs are subject to any offsets allowed under the Treasury Offset 3 | Program (“TOP”), as discussed in Astrue v. Ratliff, 560 U.S. 586 (2010). If the Commissioner 4 | determines upon effectuation of this order that Plaintiff's EAJA fees are not subject to any offset 5 | allowed under the TOP, the fees shall be delivered or otherwise transmitted to Plaintiff’s counsel. 6 Accordingly, it is HEREBY ORDERED: 7 1. Plaintiff's stipulated request for the award and payment of attorney fees and expenses 8 pursuant to the EAJA (ECF No. 24) is GRANTED; and 9 2. The Commissioner is directed to pay to Plaintiff as the prevailing party attorney fees in 10 the amount of 6,750.00. Unless any offsets are applied under TOP, the government shall 11 make payment of the fees to Plaintiff's counsel Jonathan Omar Pefia, in accordance with 12 Plaintiff's assignment of fees and subject to the terms of the stipulation. 13 [T IS SO ORDERED. Dated: _ December 30, 2022 | ww RR 15 UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28