Kutschera v. Kijakazi ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JACQUELINE K., Case No.: 3:21-cv-00405-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. 19] Defendant. 16 17 Before the Court is the parties’ Joint Motion for the Award and Payment of Attorney 18 Fees and Expenses. ECF No. 19. The parties jointly move the Court to award Plaintiff 19 Jacqueline K. (“Plaintiff”) attorney fees and expenses pursuant to the Equal Access to 20 Justice 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 her application 24 for supplemental security income benefits. On March 8, 2021, Plaintiff filed a complaint 25 against the acting Commissioner of Social Security. ECF No. 1. Defendant filed the 26 administrative record in lieu of an answer. ECF No. 12. The Court set a scheduling order, 27 requiring that the parties file a Joint Motion for Judicial Review of Final Decision of the 28 Commissioner of Social Security (“Joint Motion for Judicial Review”). ECF No. 18. The 1 parties timely filed their Joint Motion for Judicial Review on March 10, 2022. ECF No. 16. 2 On September 30, 2022, the Court issued an Order on the parties’ Joint Motion for Judicial 3 Review, reversing the final decision of the Commissioner of Social Security and remanding 4 the action for further proceedings. ECF No. 17. A Clerk’s Judgment was entered on the 5 same date. ECF No. 18. The instant motion follows. 6 The parties have jointly requested that Plaintiff’s counsel receive compensation for 7 21.3 hours of work, at $217.54 per hour for work performed in 2021 and $231.49 per hour 8 for work completed in 2022, and counsel’s paralegals receive compensation for 4 hours of 9 work, at $150.00 per hour, with the total request discounted1 to $5,400.00. ECF Nos. 19, 10 19-2. 11 II. THRESHOLD ISSUE OF TIMELINESS 12 According to the EAJA, an application for fees must be filed “within thirty days of 13 final judgment.” 28 U.S.C. § 2412(d)(1)(B). A final judgment is “a judgment that is final 14 and not appealable . . . .” 28 U.S.C. § 2412(d)(2)(G). The Ninth Circuit has held that the 15 EAJA’s 30-day filing period does not begin to run until after the 60-day appeal period in 16 Federal Rule of Appellate Procedure 4(a).2 Hoa Hong Van v. Barnhart, 483 F.3d 600, 612 17 (9th Cir. 2007). 18 Here, the parties filed the motion for EAJA fees on December 22, 2022, 83 days 19 after judgment was entered on September 30, 2022. The motion was filed 23 days after the 20 60-day period expired and falls within the 30-day filing period. Accordingly, the Joint 21 Motion is timely. 22 23 1 In the parties’ itemization of fees, the total fee was calculated to be $5,497.26. ECF No. 24 19-2 at 2. However, in the parties’ joint motion, the total fee requested was $5,400.00. ECF 25 No. 19 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 III. DISCUSSION 2 Under the EAJA, a litigant is entitled to attorney fees and costs if: “(1) he is the 3 prevailing party; (2) the government fails to show that its position was substantially 4 justified or that special circumstances make an award unjust; and (3) the requested fees and 5 costs are reasonable.” Carbonell v. I.N.S., 429 F.3d 894, 898 (9th Cir. 2005). See also 28 6 U.S.C. § 2412(a), (d). The Court will address these elements in turn. 7 A. Prevailing party 8 A plaintiff is a prevailing party if she “has ‘succeeded on any significant issue in 9 litigation which achieve[d] some of the benefit . . . sought in bringing suit.’” Ulugalu v. 10 Berryhill, No. 17cv1087-GPC-JLB, 2018 WL 2012330, at *2 (S.D. Cal. Apr. 30, 2018) 11 (quoting Schaefer, 509 U.S. at 302). Here, Plaintiff is the prevailing party because the Court 12 granted his motion for judicial review, reversed the final decision of the Commissioner of 13 Social Security denying his application for supplemental security income benefits, and 14 remanded the action for further proceedings at the administrative level. ECF No. 17. 15 B. Substantial justification 16 The government bears the burden of proving that its position, both in the underlying 17 administrative proceedings and in the subsequent litigation, was substantially justified 18 under 28 U.S.C. 2412(d)(1)(A). Meier v. Colvin, 727 F.3d 867, 870 (9th Cir. 2013). Here, 19 the parties have stipulated to the EAJA fee amount, and explain that the stipulation 20 “constitutes a compromise settlement of [Plaintiff]’s request for EAJA attorney fees[.]” 21 ECF No. 19 at 2. Although Defendant’s stipulation does not constitute an admission of 22 liability on its part, the compromise nature of the request is sufficient to find the second 23 element met, given that “Defendant has stipulated to the attorney[] fees and does not argue 24 that the prevailing party’s position was substantially unjustified.” Krebs v. Berryhill, No. 25 16-cv-3096-JLS-BGS, 2018 WL 3064346, at *2 (S.D. Cal. June 21, 2018); see also Black 26 v. Berryhill, No. 18-cv-1673-JM-LL, 2019 WL 2436393, at *1 (S.D. Cal. June 11, 2019) 27 (finding the second element met because, “in light of the joint nature of the parties’ request 28 and the court’s prior order remanding this action, the government has not shown that its 1 position was substantially justified.”). Accordingly, the Court finds no basis to deny the 2 EAJA fee request pursuant to § 2412(d)(1)(A). 3 C. Reasonableness of Hours 4 The parties seek a fee award for 21.3 hours billed by Plaintiff’s counsel. ECF No. 5 19-2. The Court finds the number of hours billed by Plaintiff’s counsel reasonable. See 28 6 U.S.C. § 2412(d); Nadarajah v. Holder, 569 F.3d 906, 918 (9th Cir. 2009); see also Costa 7 v. Comm’r of SSA, 690 F.3d 1132, 1136 (9th Cir. 2012) (reiterating the Ninth Circuit’s 8 previous position that “‘lawyers are not likely to spend unnecessary time on contingency 9 fee cases in the hope of inflating their fees’ because ‘the payoff is too uncertain.’ [] As a 10 result, courts should generally defer to the ‘winning lawyer’s professional judgment as to 11 how much time he was required to spend on the case.’”) (quoting Moreno v. City of 12 Sacramento, 534 F.3d 1106, 1112–13 (9th Cir. 2008)); see, e.g., Costa, 690 F.3d at 1136 13 (noting “[m]any district courts have noted that twenty to forty hours is the range most often 14 requested and granted in social security cases”); Krebs, 2018 WL 3064346, at *2 (finding 15 that 21.7 hours billed by plaintiff’s counsel and 3.5 hours billed by a paralegal a reasonable 16 number of hours). 17 The parties also see a fee award for 4 hours billed by Plaintiff’s counsel’s paralegals. 18 ECF No. 19-2. Paralegal fees are also recoverable fees under the EAJA. See Richlin Sec. 19 Serv. Co. v. Chertoff, 553 U.S. 571, 581, 128 S. Ct. 2007, 170 L. Ed. 2d 960 (2008) (stating 20 "we think EAJA . . . must be interpreted as using the term ‘attorney. . . fees’ to reach fees 21 for paralegal services as well as compensation for the attorney’s personal labor.”) (ellipses 22 in original); see also Nadarajah, 569 F.3d at 918 (a prevailing party may recover 23 reasonable paralegal fees). However, time spent by a paralegal on clerical matters is not 24 recoverable, as this should be subsumed in law firm overhead rather than billed at paralegal 25 rates. Nadarajah, 569 F.3d at 921. “‘Receipt’ of a court order or case filing is also clerical 26 in nature.” Rosemary G.V. v. Saul, No. 3:19-cv-715-RBM, 2020 WL 6703123, at *3 (S.D. 27 Cal. Nov. 12, 2020) (collecting cases and excluding 0.85 hours for paralegal entries such 28 as “receipt of scheduling order” and “receipt and review of IFP from client”); Douzat v. 1 Saul, No. 17-cv-1740-NJK, 2020 WL 3408706, at *3 (D. Nev. June 11, 2020) (excluding 2 1.1 hours of paralegal time for “receipt” of an order or other court document); McDade v. 3 Saul, No. 17-cv-763-JCS, 2019 WL 6251229, at *6 (N.D. Cal. Nov. 22, 2019) (excluding 4 1.67 hours of paralegal time billed for receipt of documents, status reports to the client, and 5 similar tasks, and also excluding 0.2 hours of attorney time for “receipt” of a motion and 6 an email). Here, 2 paralegal entries include clerical tasks and that prorated time will be 7 excluded. See ECF No. 19-2 at 1 (billing 0.5 hours for “receipt of memo and filing of 8 complaint and related papers” and 0.4 hours for “receipt of administrative record, 9 preparation of memorandum to [counsel] regarding same”). The Court will, therefore, 10 exclude 0.18 hours as clerical. Additionally, the Court will exclude 0.3 hours as excessive. 11 Here, paralegal Enedina Perez billed 0.4 hours for “preparation of magistrate consent.” Id. 12 However, in an EAJA fee application submitted 3 days ago in another case, the same 13 paralegal billed 0.1 hours for the exact same task. See Joint Motion for EAJA Attorney 14 Fees, Blake R. v. Kijakazi, No. 20-cv-1759-AHG (S.D. Cal. Dec. 20, 2022), ECF No. 27- 15 2. The remaining 3.52 hours of paralegal time, however, appear reasonable and appropriate. 16 Krebs, 2018 WL 3064346, at *2. 17 D. Reasonableness of Hourly Rate 18 The EAJA provides that the Court may award reasonable attorney fees “based upon 19 prevailing market rates for the kind and quality of the services furnished,” but “attorney 20 fees shall not be awarded in excess of $125 per hour unless the court determines that an 21 increase in the cost of living or a special factor, such as the limited availability of qualified 22 attorneys for the proceedings involved, justifies a higher fee.” 28 U.S.C. § 2412(d)(2)(A). 23 As noted, the statutory maximum EAJA rate for work performed in 2021 in the Ninth 24 Circuit, factoring in increases in the cost of living, was $217.54, and the statutory 25 maximum EAJA rate for the first half of 2022 was $231.49. See United States Courts for 26 the Ninth Circuit, Statutory Maximum Rates Under the Equal Access to Justice Act, 27 https://www.ca9.uscourts.gov/attorneys/statutory-maximum-rates/ (last visited Dec. 22, 28 2022); see also Thangaraja v. Gonzales, 428 F.3d 870, 876 (9th Cir. 2005) (“EAJA 1 provides for an upward adjustment of the $125 rate contained in the statute, based on cost- 2 of-living increases”) (citing 28 U.S.C. § 2412(d)(2)(A)); see, e.g., Black, 2019 WL 3 2436393, at *1 (considering the Ninth Circuit’s hourly EAJA rate a reasonable rate). 4 Consistent with the Ninth Circuit’s hourly EAJA rates, Plaintiff’s counsel billed at a rate 5 of $217.54 per hour for work performed in 2021, and at a rate of $231.49 for work 6 performed in 2022. ECF No. 19-2 at 1. As such, the Court finds that the hourly rate billed 7 by counsel is reasonable. 8 The parties, however, have not established that the requested paralegal rate of 9 $150.00 is reasonable. See Blake R. v. Kijakazi, No. 20-cv-1759-AHG, 2022 U.S. Dist. 10 LEXIS 230893, at *8 (S.D. Cal. Dec. 22, 2022) (finding an hourly rate of $143 for work 11 done by paralegals in 2021 and 2022 in the San Diego area to be reasonable); Lisa M. v. 12 Kijakazi, No. 21-cv-1501-JLB, 2022 WL 17069826, at *1 n.2 (S.D. Cal. Nov. 17, 2022) 13 (finding an hourly rate of $143 for work done by a paralegal in 2022 in the San Diego area 14 to be reasonable); Roland S. v. Saul, No. 3:20-cv-1068-AHG, 2021 WL 4081567, at *3 15 (S.D. Cal. Sept. 7, 2021) (finding an hourly rate of $143 for work done by a paralegal in 16 2020 and 2021 in the San Diego area to be reasonable based on the prevailing market rate, 17 noting that the parties included evidentiary support for its paralegal hourly rate). Thus, 18 without information from the parties regarding the paralegals’ experience or education, or 19 other evidentiary support regarding the median hourly rate for paralegals in San Diego, the 20 parties have not persuaded the Court that $150 is reasonable. Thus, the Court reduces the 21 paralegal rate from $150 to $143, the hourly rate recently approved by multiple courts in 22 this district. See, e.g., id. 23 E. Assignment of Rights to Counsel 24 The parties jointly request that “[f]ees shall be made payable to [Plaintiff], but if the 25 Department of the Treasury determines that Plaintiff does not owe a federal debt, then the 26 government shall cause the payment of fees and costs to be made directly to [Plaintiff’s 27 counsel], pursuant to the assignment executed by Plaintiff.” ECF No. 19 at 2; see also ECF 28 No. 19-1 at ¶ 4 (agreement signed by Plaintiff stating agreement signed by Plaintiff stating 1 that Plaintiff “shall endorse such documents as are needed to pay Attorney any amounts 2 under the EAJA and assigns such fee awards to Attorney.”). 3 The Supreme Court has held that “a § 2412(d) fees award is payable to the litigant 4 and is therefore subject to a Government offset to satisfy a pre-existing debt that the litigant 5 owes the United States.” Astrue v. Ratliff, 560 U.S. 586, 588–89 (2010). Nonetheless, 6 “district courts have recognized that Ratliff does not prevent payment of a fee award 7 directly to the attorney where there has been a valid assignment and the plaintiff does not 8 owe a debt to the government.” Ulugalu, 2018 WL 2012330, at *4–5 (reviewing Plaintiff’s 9 assignment agreement and ordering that the EAJA fees be paid to plaintiff’s counsel, 10 subject to any administrative offset due to outstanding federal debt); Bell v. Berryhill, No. 11 16cv809-MMC, 2018 WL 452110, at *5 (N.D. Cal. Jan. 17, 2018) (same); Blackwell v. 12 Astrue, No. CIV-08-1454-EFB, 2011 WL 1077765, at *4–5 (E.D. Cal. Mar. 21, 2011) 13 (same); see also Calderon v. Astrue, No. 08cv1015-GSA, 2010 WL 4295583, at *8 (E.D. 14 Cal. Oct. 21, 2010) (“Plaintiff, as the prevailing litigant, would normally be awarded the 15 fees described above, subject to any offset for applicable government debts. Defendant, 16 however, seems to be content to permit payment to Plaintiff’s counsel if Plaintiff does not 17 have any qualifying government debt . . . . This Court finds the government’s position to 18 be reasonable and will therefore permit payment to Plaintiff’s counsel provided Plaintiff 19 has no government debt that requires offset”). 20 Here, Plaintiff assigned his right to EAJA fees to his attorneys at the Law Offices of 21 Lawrence D. Rohlfing, Inc., CPC. ECF No. 19-1. Accordingly, if Plaintiff has no federal 22 debt that is subject to offset, the award of fees and costs may be paid directly to attorney 23 Steven G. Rosales pursuant to the assignment agreement and in accordance with the 24 parties’ Joint Motion. 25 IV. CONCLUSION 26 The Court finds that a reduction of 0.18 hours of clerical paralegal work and another 27 reduction of 0.30 hours of excessive paralegal work is warranted. The Court further reduces 28 the paralegals’ hourly rate from the $150 per hour requested to $143 per hour. The 1 ||remainder of Plaintiff’s fee request is reasonable: 21.3 hours of attorney time, at $217.54 2 hour for 2.4 hours of work performed in 2021 and $231.49 per hour for 18.9 hours of 3 || work completed in 2022, and 3.52 hours of paralegal time, at $143.00 per hour. Though 4 ||the Court reduced the paralegal fees and hourly rates, the Court adopts the parties’ 5 || discounted? $5,400.00 request. 6 Accordingly, for the reasons set forth above, the Court hereby ORDERS that: 7 1. The parties’ Joint Motion for the Award and Payment of Attorney Fees and 8 ||Expenses Pursuant to the Equal Access to Justice Act (ECF No. 19) is GRANTED; 9 2. Plaintiff is awarded attorney fees under the EAJA in the amount of $5,400.00; 10 || and 11 3. Pursuant to Astrue v. Ratliff, 560 U.S. 586, 588-89 (2010), any payment shall 12 || be made payable to Plaintiff and delivered to Plaintiff's counsel, unless Plaintiff does not 13 a federal debt. If the United States Department of the Treasury determines that Plaintiff 14 || does not owe a federal debt, the government shall accept Plaintiff's assignment of EAJA 15 || fees and pay fees directly to Steven G. Rosales at the Law Offices of Lawrence D. Rohlfing, 16 || Inc., CPC. 17 IT IS SO ORDERED. 18 Dated: December 23, 2022 19 _ Awan. Honorable Allison H. Goddard 20 United States Magistrate Judge 21 22 23 AA 24 >In the parties’ itemization of fees, the total requested fees were calculated to be $5,497.26. 25 || ECF No. 19-2 at 2. After excluding the 0.18 clerical hours of paralegal time, excluding the 6 excessive hours of paralegal time, and adjusting the remaining paralegal time to be at a rate of $143 per hour instead of $150 per hour, the total is recalculated to be $5,400.62. 27 || However, in the parties’ joint motion, the total fee requested was $5,400.00. ECF No. 19 28 at 1.