Baker v. Berryhill ( 2020 )

2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 TONI LYNN B., Case No.: 3:19-cv-925-AHG 11 Plaintiff, ORDER GRANTING JOINT 12 v. MOTION FOR ATTORNEY FEES 13 AND EXPENSES ANDREW SAUL, Commissioner of 14 Social Security, [ECF No. 26] Defendant. 15 16 Before the Court is the parties’ Joint Motion for the Award and Payment of Attorney 17 Fees and Expenses. ECF No. 26. The parties jointly move the court to award Plaintiff Toni 18 Lynn B. (“Plaintiff”) attorney fees and expenses pursuant to the Equal Access to Justice 19 Act (“EAJA”), 28 U.S.C. § 2412(d). Id. For the reasons set forth below, the Court 20 GRANTS the parties’ joint motion. 21 I. BACKGROUND 22 The underlying action involves Plaintiff’s challenge to the denial of her application 23 for social security disability and supplemental security income benefits. On May 16, 2019, 24 Plaintiff filed a complaint against the acting Commissioner of Social Security. ECF No. 1. 25 Defendant filed the administrative record in lieu of an answer. ECF No. 15. The Court set 26 a scheduling order, requiring formal settlement discussions and a joint status report, as well 27 as that a Joint Motion for Judicial Review of Final Decision of the Commissioner of Social 2 Motion for Judicial Review, the parties filed a joint motion for voluntary remand pursuant 3 to sentence four of 42 U.S.C. § 405(g), which sought a remand and entry of judgment in favor of Plaintiff. ECF No. 23. On March 27, 2020, the Court granted the joint motion, 4 remanded the case to the Commissioner of Social Security for further administration action, 5 and entered a final judgment in favor of Plaintiff and against Defendant, reversing the final 6 decision of the Commissioner. ECF No. 24. A Clerk’s Judgment was entered on 7 March 27, 2020. ECF No. 25. The instant motion follows. Here, the parties have jointly 8 requested that Plaintiff’s counsel receive $205.25 per hour for 14.8 hours of work 9 performed and $130 per hour for 2.9 hours of paralegal work, with the total request 10 discounted1 to $3,314.70. ECF Nos. 26, 26-2. 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 an attorney fees motion on June 23, 2020, 88 days after final 19 judgment was filed on March 27, 2020. The motion was filed 28 days after the 60-day 20 period expired and falls within the 30-day filing period. Accordingly, the motion for attorney fees is timely. 21 22 23 1 In the parties’ itemization of fees, the total fee was calculated to be $3,414.70. ECF No. 24 26-2 at 2. However, in the parties’ joint motion, the agreed amount requested was 25 $3,314.70. ECF No. 26 at 2–3. 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 2 Under the EAJA, a litigant is entitled to attorney fees and costs if: “(1) [s]he is the 3 prevailing party; (2) the government fails to show that its position was substantially justified or that special circumstances make an award unjust; and (3) the requested fees and 4 costs are reasonable.” Carbonell v. I.N.S., 429 F.3d 894, 898 (9th Cir. 2005). The Court 5 will address these in turn. 6 A. Prevailing party 7 A plaintiff is a prevailing party if she “has ‘succeeded on any significant issue in 8 litigation which achieve[d] some of the benefit . . . sought in bringing suit.’” Ulugalu v. 9 Berryhill, No. 17cv1087-GPC-JLB, 2018 WL 2012330, at *2 (S.D. Cal. Apr. 30, 2018) 10 (quoting Shalala v. Schaefer, 509 U.S. 292, 302 (1993)). Here, Plaintiff is the prevailing 11 party because this case was remanded pursuant to sentence four of 42 U.S.C. § 405(g) and 12 judgment was entered in Plaintiff’s favor. Akopyan v. Barnhart, 296 F.3d 852, 854 (9th 13 Cir. 2002) (“A plaintiff who obtains a sentence four remand is considered a prevailing party 14 for purposes of attorneys’ fees.”); Ulugalu, 2018 WL 2012330, at *2 (in a case where the 15 parties jointly stipulated to remand, “because the Court granted the Commissioner’s 16 proposed order for remand and entered judgment in favor of Plaintiff pursuant to sentence- 17 four, Plaintiff is a prevailing party”); see ECF Nos. 24, 25 (remanding the case pursuant to 18 sentence four of 42 U.S.C. § 405(g) and entering judgment in Plaintiff’s favor). 19 B. Substantial justification 20 The government bears the burden of proving that its position, both in the underlying administrative proceedings and in the subsequent litigation, was substantially justified. 21 Meier v. Colvin, 727 F.3d 867, 870 (9th Cir. 2013). Here, “Defendant has stipulated to the 22 attorney[] fees and does not argue that the prevailing party’s position was substantially 23 unjustified.” Krebs v. Berryhill, 16cv3096-JLS-BGS, 2018 WL 3064346, at *2 (S.D. Cal. 24 June 21, 2018); see also Black v. Berryhill, No. 18cv1673-JM-LL, 2019 WL 2436393, at 25 *1 (S.D. Cal. June 11, 2019) (finding the second element met because, “in light of the joint 26 nature of the parties’ request and the court’s prior order remanding this action, the 27 government has not shown that its position was substantially justified.”). Furthermore, 2 referred to an Administrative Law Judge to make a new determination as to Plaintiff’s 3 disability, the Court is persuaded the Commissioner did not have substantial justification for denying Plaintiff disability rights.” Ulugalu, 2018 WL 2012330, at *3. 4 C. Reasonableness of Hours 5 The parties seek a fee award for 14.8 hours billed by Plaintiff’s counsel and 2.9 hours 6 billed by a paralegal. ECF No. 26-2 at 1. The Court finds the number of hours billed by the 7 paralegal and Plaintiff’s counsel reasonable. See 28 U.S.C. § 2412(d); Nadarajah v. 8 Holder, 569 F.3d 906, 918 (9th Cir. 2009) (a prevailing party may recover reasonable 9 paralegal fees); see also Costa v. Comm’r of SSA, 690 F.3d 1132, 1136 (9th Cir. 2012) 10 (reiterating the Ninth Circuit’s previous position that “‘lawyers are not likely to spend 11 unnecessary time on contingency fee cases in the hope of inflating their fees’ because ‘the 12 payoff is too uncertain.’ [] As a result, courts should generally defer to the ‘winning 13 lawyer’s professional judgment as to how much time he was required to spend on the 14 case.’”) (quoting Moreno v. City of Sacramento, 534 F.3d 1106, 1112–13 (9th Cir. 2008)); 15 Black, 2019 WL 2436393, at *1 (finding 2.7 hours billed by a paralegal and 14.1 hours 16 billed by plaintiff’s counsel a reasonable number of hours). 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 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 Plaintiff’s counsel bills at an hourly rate of $205.25 and his paralegal bills at an hourly rate 23 of $130. ECF No. 26-2 at 1. The parties’ joint motion fails to provide any reason or 24 authority for fees above the statutorily mandated amount of $125 per hour. However, 25 the Ninth Circuit’s hourly EAJA rate for work performed in 2019, factoring in an 26 increase in the cost of living, was $205.25. See United States Courts for the Ninth 27 Circuit, Statutory Maximum Rates Under the Equal Access to Justice Act, 2 2020); see also Thangaraja v. Gonzales, 428 F.3d 870, 876 (9th Cir. 2005) (“EAJA 3 provides for an upward adjustment of the $125 rate contained in the statute, based on cost- of-living increases”) (citing 28 U.S.C. § 2412(d)(2)(A)); see, e.g., Black, 2019 WL 4 2436393, at *1 (considering the Ninth Circuit’s hourly EAJA rate a reasonable rate); 5 Ulugalu, 2018 WL 2012330, at *3 (same). Furthermore, the Court may approve paralegal 6 rates at prevailing market rates. Nadarajah, 569 F.3d at 918; Black, 2019 WL 2436393, at 7 *1 (approving paralegal’s hourly rate of $130 for EAJA award); Smith v. Berryhill, 8 17cv2108-CAB-RNB, 2019 U.S. Dist. LEXIS 89885, at *5 (S.D. Cal. Mar. 14, 2019) 9 (approving paralegal’s hourly rate of $130 for EAJA award). As such, the Court finds that 10 the hourly rates billed by the paralegal and counsel are reasonable. 11 E. Assignment of Rights to Counsel 12 The parties jointly request that “[f]ees shall be made payable to Toni Lynn B[.], but 13 if the Department of the Treasury determines that Toni Lynn B[.] does not owe a federal 14 debt, then the government shall cause the payment of fees, expenses and costs to be made 15 directly to Law Offices of Lawrence D. Rohlfing, pursuant to the assignment executed by 16 Toni Lynn B[.]” ECF No. 26 at 2; see ECF No. 26-1 (agreement signed by Plaintiff stating 17 that “Client … assigns such [EAJA] fee awards to Attorney”). 18 The Supreme Court has held that “a § 2412(d) fees award is payable to the litigant 19 and is therefore subject to a Government offset to satisfy a pre-existing debt that the litigant 20 owes the United States.” Astrue v. Ratliff, 560 U.S. 586, 588–89 (2010). In Ratliff, plaintiff’s counsel was successful in plaintiff’s Social Security benefits suit and the court 21 granted the unopposed motion for fees under the EAJA. Id. However, before paying the 22 fee award, the government discovered that plaintiff owed the United States a debt that 23 predated the award, and accordingly, the government sought an offset of that owed amount. 24 Id. Plaintiff’s counsel intervened and argued that the fee award belonged to plaintiff’s 25 counsel, and thus was not subject to offset for the litigant’s federal debts. Id. The Supreme 26 Court disagreed, finding that “Congress knows how to make fee awards payable directly 27 to attorneys where it desires to do so,” and because the fee was payable to a “prevailing 2 Nonetheless, “district courts have recognized that Ratliff does not prevent payment 3 of a fee award directly to the attorney where there has been a valid assignment and the plaintiff does not owe a debt to the government.” Ulugalu, 2018 WL 2012330, at *4–*5 4 (reviewing Plaintiff’s assignment agreement and ordering that the EAJA fees be paid to 5 plaintiff’s counsel, subject to any administrative offset due to outstanding federal debt); 6 Bell v. Berryhill, No. 16cv809-MMC, 2018 WL 452110, at *5 (N.D. Cal. Jan. 17, 2018) 7 (same); Blackwell v. Astrue, No. CIV-08-1454-EFB, 2011 WL 1077765, at *4–*5 (E.D. 8 Cal. Mar. 21, 2011) (same); Castaneda v. Astrue, No. EDCV-09-1850-OP, 2010 U.S. Dist. 9 LEXIS 72887, at *6–*8 (C.D. Cal. Jul. 20, 2010) (same); see also Calderon v. Astrue, No. 10 08cv1015-GSA, 2010 WL 4295583, at *8 (E.D. Cal. Oct. 21, 2010) (“Plaintiff, as the 11 prevailing litigant, would normally be awarded the fees described above, subject to any 12 offset for applicable government debts. Defendant, however, seems to be content to permit 13 payment to Plaintiff’s counsel if Plaintiff does not have any qualifying government debt . 14 . . . This Court finds the government’s position to be reasonable and will therefore permit 15 payment to Plaintiff’s counsel provided Plaintiff has no government debt that requires 16 offset”); cf. Hernandez v. Berryhill, No. 15cv1322-DB, 2017 WL 2930802, at *3 (E.D. 17 Cal. July 10, 2017) (declining to order that the EAJA fees be paid to plaintiff’s counsel, 18 subject to any administrative offset due to outstanding federal debt, because the parties 19 failed to produce evidence of an assignment agreement). 20 Here, Plaintiff assigned her right to EAJA fees to her attorney. ECF No. 26-1. Accordingly, should Plaintiff not have a debt that is subject to offset, the award of fees may 21 be paid directly to counsel. 22 IV. CONCLUSION 23 As set forth above, it is hereby ordered that: 24 1. The parties’ Joint Motion for the Award and Payment of Attorney Fees and 25 Expenses (ECF No. 26) is GRANTED; 26 2. Plaintiff is awarded attorney fees under the EAJA in the amount of $3,314.70. 27 See ECF No. 26 at 2; and 1 3. Pursuant to Astrue v. Ratliff, 560 U.S. 586, 588-89 (2010), any payment shall 2 || be made payable to Plaintiff and delivered to Plaintiff’s counsel, unless Plaintiff does not 3 || owe a federal debt. If the United States Department of the Treasury determines that Plaintiff 4 || does not owe a federal debt, the government shall accept Plaintiff's assignment of EAJA 5, || fees and pay fees directly to Plaintiff's counsel. See ECF No. 26 at 2; see, e.g., Mendoza v. 6 Saul, No. 18cv925-SKO, 2020 WL 406773, at *5 (E.D. Cal. Jan 24, 2020). 7 3 IT IS SO ORDERED. Dated: July 15, 2020 9 H. Koviolarvl 10 Honorable Allison H. Goddard United States Magistrate Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28