Rudden v. Kijakazi ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 BLAKE R., Case No.: 3:20-cv-01759-AHG 12 Plaintiff, ORDER GRANTING JOINT MOTION FOR AWARD AND 13 v. PAYMENT OF ATTORNEY FEES 14 KILOLO KIJAKAZI, AND EXPENSES Acting Commissioner of Social Security, 15 [ECF No. 27] Defendant. 16 17 Before the Court is the parties’ Joint Motion for the Award and Payment of Attorney 18 Fees and Expenses. ECF No. 27. The parties jointly move the Court to award Plaintiff 19 Blake R. (“Plaintiff”) attorney fees and expenses pursuant to the Equal Access to Justice 20 Act (“EAJA”), 28 U.S.C. § 2412(d). Id. For the reasons set forth below, the Court 21 GRANTS the parties’ joint motion. 22 I. BACKGROUND 23 The underlying action involves Plaintiff’s challenge to the denial of his application 24 for social security disability insurance benefits. On September 8, 2020, Plaintiff filed a 25 complaint against the acting Commissioner of Social Security. ECF No. 1. Defendant filed 26 the administrative record in lieu of an answer. ECF No. 17. The Court set a 27 scheduling order, requiring that the parties file a Joint Motion for Judicial Review of Final 28 Decision of the Commissioner of Social Security (“Joint Motion for Judicial Review”). 1 ECF No. 18. The parties timely filed their Joint Motion for Judicial Review on 2 November 29, 2021. ECF No. 22. On May 23, 2022, the Court required the parties to 3 submit supplemental briefing, given the recent decision in Kaufmann v. Kijakazi, 32 F.4th 4 843 (9th Cir. 2022). ECF No. 23. On May 26, 2022, Plaintiff filed his supplemental 5 briefing, withdrawing Issue 2 in light of Kaufmann. ECF No. 24. On September 29, 2022, 6 the Court issued an Order on the parties’ Joint Motion for Judicial Review, reversing the 7 final decision of the Commissioner of Social Security and remanding the action for 8 calculation and award of benefits. ECF No. 25. A Clerk’s Judgment was entered on the 9 same date. ECF No. 26. The instant motion follows. 10 The parties have jointly requested that Plaintiff’s counsel receive compensation for 11 23.55 hours of work, at $217.54 per hour for work performed in 2021 and $231.49 per hour 12 for work completed in 2022, and counsel’s paralegals receive compensation for 4.05 hours 13 of work, at $143.00 per hour, with the total request discounted1 to $5,500.00. ECF Nos. 27, 14 27-2. 15 II. THRESHOLD ISSUE OF TIMELINESS 16 According to the EAJA, an application for fees must be filed “within thirty days of 17 final judgment.” 28 U.S.C. § 2412(d)(1)(B). A final judgment is “a judgment that is final 18 and not appealable . . . .” 28 U.S.C. § 2412(d)(2)(G). The Ninth Circuit has held that the 19 EAJA’s 30-day filing period does not begin to run until after the 60-day appeal period in 20 Federal Rule of Appellate Procedure 4(a).2 Hoa Hong Van v. Barnhart, 483 F.3d 600, 612 21 (9th Cir. 2007). 22 23 1 In the parties’ itemization of fees, the total fee was calculated to be $5,729.42. ECF No. 24 27-2 at 2. However, in the parties’ joint motion, the total fee requested was $5,500.00. ECF 25 No. 27 at 1. 26 2 Federal Rule of Appellate Procedure 4(a) provides that a “notice of appeal may be filed 27 by any party within 60 days after entry of the judgment or order appealed from” if one of the parties is the United States or a United States officer sued in an official capacity. Fed. 28 1 Here, the parties filed the motion for EAJA fees on December 20, 2022, 82 days 2 after judgment was entered on September 29, 2022. The motion was filed 22 days after the 3 60-day period expired and falls within the 30-day filing period. Accordingly, the Joint 4 Motion is timely. 5 III. DISCUSSION 6 Under the EAJA, a litigant is entitled to attorney fees and costs if: “(1) he is the 7 prevailing party; (2) the government fails to show that its position was substantially 8 justified or that special circumstances make an award unjust; and (3) the requested fees and 9 costs are reasonable.” Carbonell v. I.N.S., 429 F.3d 894, 898 (9th Cir. 2005). See also 28 10 U.S.C. § 2412(a), (d). The Court will address these elements in turn. 11 A. Prevailing party 12 A plaintiff is a prevailing party if she “has ‘succeeded on any significant issue in 13 litigation which achieve[d] some of the benefit . . . sought in bringing suit.’” Ulugalu v. 14 Berryhill, No. 17cv1087-GPC-JLB, 2018 WL 2012330, at *2 (S.D. Cal. Apr. 30, 2018) 15 (quoting Schaefer, 509 U.S. at 302). Here, Plaintiff is the prevailing party because the Court 16 granted his motion for judicial review, reversed the final decision of the Commissioner of 17 Social Security denying his application for disability insurance benefits, and remanded the 18 action for calculation and award of benefits. ECF No. 25 19 B. Substantial justification 20 The government bears the burden of proving that its position, both in the underlying 21 administrative proceedings and in the subsequent litigation, was substantially justified 22 under 28 U.S.C. 2412(d)(1)(A). Meier v. Colvin, 727 F.3d 867, 870 (9th Cir. 2013). Here, 23 the parties have stipulated to the EAJA fee amount, and explain that the stipulation 24 “constitutes a compromise settlement of [Plaintiff]’s request for EAJA attorney fees[.]” 25 ECF No. 27 at 2. Although Defendant’s stipulation does not constitute an admission of 26 liability on its part, the compromise nature of the request is sufficient to find the second 27 element met, given that “Defendant has stipulated to the attorney[] fees and does not argue 28 that the prevailing party’s position was substantially unjustified.” Krebs v. Berryhill, No. 1 16-cv-3096-JLS-BGS, 2018 WL 3064346, at *2 (S.D. Cal. June 21, 2018); see also Black 2 v. Berryhill, No. 18-cv-1673-JM-LL, 2019 WL 2436393, at *1 (S.D. Cal. June 11, 2019) 3 (finding the second element met because, “in light of the joint nature of the parties’ request 4 and the court’s prior order remanding this action, the government has not shown that its 5 position was substantially justified.”). Accordingly, the Court finds no basis to deny the 6 EAJA fee request pursuant to § 2412(d)(1)(A). 7 C. Reasonableness of Hours 8 The parties seek a fee award for 23.55 hours billed by Plaintiff’s counsel. ECF No. 9 27-2. The Court finds the number of hours billed by Plaintiff’s counsel reasonable. See 28 10 U.S.C. § 2412(d); Nadarajah v. Holder, 569 F.3d 906, 918 (9th Cir. 2009); see also Costa 11 v. Comm’r of SSA, 690 F.3d 1132, 1136 (9th Cir. 2012) (reiterating the Ninth Circuit’s 12 previous position that “‘lawyers are not likely to spend unnecessary time on contingency 13 fee cases in the hope of inflating their fees’ because ‘the payoff is too uncertain.’ [] As a 14 result, courts should generally defer to the ‘winning lawyer’s professional judgment as to 15 how much time he was required to spend on the case.’”) (quoting Moreno v. City of 16 Sacramento, 534 F.3d 1106, 1112–13 (9th Cir. 2008)); see, e.g., Costa, 690 F.3d at 1136 17 (noting “[m]any district courts have noted that twenty to forty hours is the range most often 18 requested and granted in social security cases”); Krebs, 2018 WL 3064346, at *2 (finding 19 that 21.7 hours billed by plaintiff’s counsel and 3.5 hours billed by a paralegal a reasonable 20 number of hours). 21 The parties also see a fee award for 4.05 hours billed by Plaintiff’s counsel’s 22 paralegals. ECF No. 27-2. Paralegal fees are also recoverable fees under the EAJA. See 23 Richlin Sec. Serv. Co. v. Chertoff, 553 U.S. 571, 581, 128 S. Ct. 2007, 170 L. Ed. 2d 960 24 (2008) (stating "we think EAJA . . . must be interpreted as using the term ‘attorney. . . fees’ 25 to reach fees for paralegal services as well as compensation for the attorney’s personal 26 labor.”) (ellipses in original); see also Nadarajah, 569 F.3d at 918 (a prevailing party may 27 recover reasonable paralegal fees). However, time spent by a paralegal on clerical matters 28 is not recoverable, as this is should be subsumed in law firm overhead rather than billed at 1 paralegal rates. Nadarajah, 569 F.3d at 921. “‘Receipt’ of a court order or case filing is 2 also clerical in nature.” Rosemary G.V. v. Saul, No. 3:19-cv-715-RBM, 2020 WL 6703123, 3 at *3 (S.D. Cal. Nov. 12, 2020) (collecting cases and excluding 0.85 hours for paralegal 4 entries such as “receipt of scheduling order” and “receipt and review of IFP from client”); 5 Douzat v. Saul, No. 17-cv-1740-NJK, 2020 WL 3408706, at *3 (D. Nev. June 11, 2020) 6 (excluding 1.1 hours of paralegal time for “receipt” of an order or other court document); 7 McDade v. Saul, No. 17-cv-763-JCS, 2019 WL 6251229, at *6 (N.D. Cal. Nov. 22, 2019) 8 (excluding 1.67 hours of paralegal time billed for receipt of documents, status reports to 9 the client, and similar tasks, and also excluding 0.2 hours of attorney time for “receipt” of 10 a motion and an email). Here, 4 paralegal entries, totaling 0.85 hours, are clerical and will 11 be excluded. See ECF No. 27-2 at 1 (billing 0.2 hours for “receipt of court order dismissing 12 complaint and denying IFP”; 0.5 hours for “receipt of administrative record”; 0.1 hours for 13 “receipt of court’s order re supplemental briefing”; and 0.05 hours for “receipt of remand 14 order and judgment”). The remaining 3.2 hours of paralegal time, however, appear 15 reasonable and appropriate. Krebs, 2018 WL 3064346, at *2. 16 D. Reasonableness of Hourly Rate 17 The EAJA provides that the Court may award reasonable attorney fees “based upon 18 prevailing market rates for the kind and quality of the services furnished,” but “attorney 19 fees shall not be awarded in excess of $125 per hour unless the court determines that an 20 increase in the cost of living or a special factor, such as the limited availability of qualified 21 attorneys for the proceedings involved, justifies a higher fee.” 28 U.S.C. § 2412(d)(2)(A). 22 As noted, the statutory maximum EAJA rate for work performed in 2021 in the Ninth 23 Circuit, factoring in increases in the cost of living, was $217.54, and the statutory 24 maximum EAJA rate for the first half of 2022 was $231.49. See United States Courts for 25 the Ninth Circuit, Statutory Maximum Rates Under the Equal Access to Justice Act, 26 https://www.ca9.uscourts.gov/attorneys/statutory-maximum-rates/ (last visited Dec. 22, 27 2022); see also Thangaraja v. Gonzales, 428 F.3d 870, 876 (9th Cir. 2005) (“EAJA 28 provides for an upward adjustment of the $125 rate contained in the statute, based on cost- 1 of-living increases”) (citing 28 U.S.C. § 2412(d)(2)(A)); see, e.g., Black, 2019 WL 2 2436393, at *1 (considering the Ninth Circuit’s hourly EAJA rate a reasonable rate). 3 Consistent with the Ninth Circuit’s hourly EAJA rates, Plaintiff’s counsel billed at a rate 4 of $217.54 per hour for work performed in 2021, and at a rate of $231.49 for work 5 performed in 2022. ECF No. 27-2 at 2. As such, the Court finds that the hourly rate billed 6 by counsel is reasonable. 7 The paralegal rate of $143.00 is also consistent with the median hourly rate for 8 paralegals in San Diego. See Lisa M. v. Kijakazi, No. 21-cv-1501-JLB, 2022 WL 9 17069826, at *1 n.2 (S.D. Cal. Nov. 17, 2022) (finding an hour rate of $143 for work done 10 by a paralegal in 2022 in the San Diego area to be reasonable); Roland S. v. Saul, No. 3:20- 11 cv-1068-AHG, 2021 WL 4081567, at *3 (S.D. Cal. Sept. 7, 2021) (finding an hourly rate 12 of $143 for work done by a paralegal in 2020 and 2021 in the San Diego area to be 13 reasonable based on the prevailing market rate). Thus, the Court also finds the $143 hourly 14 rate billed by the paralegals at Plaintiff’s counsel’s firm to be reasonable. 15 E. Assignment of Rights to Counsel 16 The parties jointly request that “[f]ees shall be made payable to [Plaintiff], but if the 17 Department of the Treasury determines that Plaintiff does not owe a federal debt, then the 18 government shall cause the payment of fees and costs to be made directly to [Plaintiff’s 19 counsel], pursuant to the assignment executed by Plaintiff.” ECF No. 27 at 2; see also ECF 20 No. 27-1 at ¶ 4 (agreement signed by Plaintiff stating agreement signed by Plaintiff stating 21 that Plaintiff “shall endorse such documents as are needed to pay Attorney any amounts 22 under the EAJA and assigns such fee awards to Attorney.”). 23 The Supreme Court has held that “a § 2412(d) fees award is payable to the litigant 24 and is therefore subject to a Government offset to satisfy a pre-existing debt that the litigant 25 owes the United States.” Astrue v. Ratliff, 560 U.S. 586, 588–89 (2010). Nonetheless, 26 “district courts have recognized that Ratliff does not prevent payment of a fee award 27 directly to the attorney where there has been a valid assignment and the plaintiff does not 28 owe a debt to the government.” Ulugalu, 2018 WL 2012330, at *4–5 (reviewing Plaintiff’s 1 assignment agreement and ordering that the EAJA fees be paid to plaintiff’s counsel, 2 subject to any administrative offset due to outstanding federal debt); Bell v. Berryhill, No. 3 16cv809-MMC, 2018 WL 452110, at *5 (N.D. Cal. Jan. 17, 2018) (same); Blackwell v. 4 Astrue, No. CIV-08-1454-EFB, 2011 WL 1077765, at *4–5 (E.D. Cal. Mar. 21, 2011) 5 (same); see also Calderon v. Astrue, No. 08cv1015-GSA, 2010 WL 4295583, at *8 (E.D. 6 Cal. Oct. 21, 2010) (“Plaintiff, as the prevailing litigant, would normally be awarded the 7 fees described above, subject to any offset for applicable government debts. Defendant, 8 however, seems to be content to permit payment to Plaintiff’s counsel if Plaintiff does not 9 have any qualifying government debt . . . . This Court finds the government’s position to 10 be reasonable and will therefore permit payment to Plaintiff’s counsel provided Plaintiff 11 has no government debt that requires offset”). 12 Here, Plaintiff assigned his right to EAJA fees to his attorneys at the Law Offices of 13 Lawrence D. Rohlfing, Inc., CPC. ECF No. 27-1. Accordingly, if Plaintiff has no federal 14 debt that is subject to offset, the award of fees and costs may be paid directly to attorney 15 Monica Perales pursuant to the assignment agreement and in accordance with the parties’ 16 Joint Motion. 17 IV. CONCLUSION 18 For the reasons set forth above, the Court finds that a reduction of 0.85 hours of work 19 performed by a paralegal is warranted. The remainder of Plaintiffs fee request is 20 reasonable: 23.55 hours of attorney time, at $217.54 per hour 21.60 hours of work 21 performed in 2021 and $231.49 per hour for 1.95 hours of work completed in 2022, and 22 3.2 hours paralegal time, at $143.00 per hour. Though the Court reduced the paralegal fees, 23 the Court adopts the parties’ discounted3 $5,500.00 request. 24 25 3 In the parties’ itemization of fees, the total requested fees were calculated to be $5,729.42. 26 ECF No. 27-2 at 2. After excluding the 0.85 clerical hours of paralegal time, the total is 27 recalculated to be $5,607.87. However, in the parties’ joint motion, the total fee requested was $5,500.00. ECF No. 27 at 1. 28 1 Accordingly, the Court hereby ORDERS that: 2 1. The parties’ Joint Motion for the Award and Payment of Attorney Fees and 3 Expenses Pursuant to the Equal Access to Justice Act (ECF No. 27) is GRANTED; 4 2. Plaintiff is awarded attorney fees under the EAJA in the amount of $5,500.00; 5 || and 6 3. Pursuant to Astrue v. Ratliff, 560 U.S. 586, 588—89 (2010), any payment shall 7 made payable to Plaintiff and delivered to Plaintiff's counsel, unless Plaintiff does not 8 || owe a federal debt. If the United States Department of the Treasury determines that Plaintiff 9 || does not owe a federal debt, the government shall accept Plaintiff's assignment of EAJA 10 || fees and pay fees directly to Monica Perales at the Law Offices of Lawrence D. Rohlfing, 11 CPC. 12 IT IS SO ORDERED. 13 ||Dated: December 22, 2022 14 _Abiomt. Xl Honorable Allison H. Goddard 15 United States Magistrate Judge 16 17 18 19 20 21 22 23 24 25 26 27 28