Banuelos v. Berryhill ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 BEATRIZ B., Case No.: 3:19-cv-785-AHG 12 Plaintiff, ORDER GRANTING JOINT MOTION FOR ATTORNEY FEES 13 v. AND EXPENSES 14 ANDREW M. SAUL, Commissioner of Social Security,1 [ECF No. 19] 15 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 Beatriz B. (“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 her application 24 25 26 1 Andrew Saul became the Commissioner of Social Security on June 17, 2019. Although 27 Plaintiff originally brought this action against Former Acting Commissioner Nancy Berryhill, this case may properly proceed against Andrew Saul pursuant to 42 U.S.C. § 28 1 for social security disability and supplemental security income benefits. On April 29, 2019, 2 Plaintiff filed a complaint against the acting Commissioner of Social Security. ECF No. 1. 3 Defendant filed the administrative record in lieu of an answer. ECF No. 13. The Court set 4 a scheduling order, requiring formal settlement discussions and a joint status report, as well 5 as that a Joint Motion for Judicial Review of Final Decision of the Commissioner of Social 6 Security (“Joint Motion for Judicial Review”) be filed by January 6, 2020. ECF No. 14. 7 On December 4, 2019, the parties timely filed their Joint Motion for Judicial Review. ECF 8 No. 23. On July 16, 2020, the Court granted the joint motion, reversing the Commissioner’s 9 denial of disability insurance benefits and remanding the case to the Administrative Law 10 Judge (“ALJ”) for the calculation and award of benefits. ECF No. 18. The instant motion 11 follows. Here, the parties have jointly requested that Plaintiff’s counsel receive $205.25 12 per hour for 19.5 hours of work performed and $143 per hour for 3.4 hours of paralegal 13 work, with the total request discounted2 to $4,450.00. ECF Nos. 19, 21. 14 II. DISCUSSION 15 Under the EAJA, a litigant is entitled to attorney fees and costs if: “(1) [s]he is the 16 prevailing party; (2) the government fails to show that its position was substantially 17 justified or that special circumstances make an award unjust; and (3) the requested fees and 18 costs are reasonable.” Carbonell v. I.N.S., 429 F.3d 894, 898 (9th Cir. 2005). The Court 19 will address these in turn. 20 A. Prevailing party 21 A plaintiff is a prevailing party if she “has ‘succeeded on any significant issue in 22 litigation which achieve[d] some of the benefit . . . sought in bringing suit.’” Ulugalu v. 23 Berryhill, No. 17cv1087-GPC-JLB, 2018 WL 2012330, at *2 (S.D. Cal. Apr. 30, 2018) 24 25 26 2 In the parties’ itemization of fees, the total fee was calculated to be $4,488.57. ECF No. 27 21-1 at 2. However, in the parties’ joint motion, the agreed amount requested was $4,450.00, which they refer to as “a compromise settlement[.]” ECF No. 19 at 1–2. 28 1 (quoting Shalala v. Schaefer, 509 U.S. 292, 302 (1993)). Here, Plaintiff is the prevailing 2 party because the Court reversed the Commissioner’s denial of disability insurance benefits 3 and remanded the case to the ALJ for the calculation and award of benefits. ECF No. 18; 4 see Gutierrez v. Barnhart, 274 F.3d 1255, 1257 (9th Cir. 2001) (“An applicant for disability 5 benefits becomes a prevailing party for the purposes of the EAJA if the denial of her 6 benefits is reversed and remanded regardless of whether disability benefits ultimately are 7 awarded”); Adams v. Berryhill, No. CV-17-4030, 2018 U.S. Dist. LEXIS 224441, at *1 n.1 8 (C.D. Cal. Oct. 26, 2018) (finding that “[t]here is no dispute that Plaintiff is the prevailing 9 party for purposes of the EAJA” when the court had reversed the decision of the 10 Commissioner and remanded the matter for further administrative proceedings). 11 B. Substantial justification 12 The government bears the burden of proving that its position, both in the underlying 13 administrative proceedings and in the subsequent litigation, was substantially justified. 14 Meier v. Colvin, 727 F.3d 867, 870 (9th Cir. 2013). Here, “Defendant has stipulated to the 15 attorney[] fees and does not argue that the prevailing party’s position was substantially 16 unjustified.” Krebs v. Berryhill, No. 16cv3096-JLS-BGS, 2018 WL 3064346, at *2 (S.D. 17 Cal. June 21, 2018); see also Black v. Berryhill, No. 18cv1673-JM-LL, 2019 WL 2436393, 18 at *1 (S.D. Cal. June 11, 2019) (finding the second element met because, “in light of the 19 joint nature of the parties’ [attorney fee] request and the court’s prior order remanding this 20 action, the government has not shown that its position was substantially justified.”). 21 C. Reasonableness of Hours 22 The parties seek a fee award for 19.5 hours billed by Plaintiff’s counsel and 3.4 hours 23 billed by a paralegal. ECF No. 21-1. The Court finds the number of hours billed by the 24 paralegal and Plaintiff’s counsel reasonable. See 28 U.S.C. § 2412(d); Nadarajah v. 25 Holder, 569 F.3d 906, 918 (9th Cir. 2009) (a prevailing party may recover reasonable 26 paralegal fees); see also Costa v. Comm’r of SSA, 690 F.3d 1132, 1136 (9th Cir. 2012) 27 (reiterating the Ninth Circuit’s previous position that “‘lawyers are not likely to spend 28 unnecessary time on contingency fee cases in the hope of inflating their fees’ because ‘the 1 payoff is too uncertain.’ [] As a result, courts should generally defer to the ‘winning 2 lawyer’s professional judgment as to how much time he was required to spend on the 3 case.’”) (quoting Moreno v. City of Sacramento, 534 F.3d 1106, 1112–13 (9th Cir. 2008)); 4 see, e.g., Costa, 690 F.3d at 1136 (noting “[m]any district courts have noted that twenty to 5 forty hours is the range most often requested and granted in social security cases”); Krebs, 6 2018 WL 3064346, at *2 (finding that 21.7 hours billed by plaintiff’s counsel and 3.5 hours 7 billed by a paralegal a reasonable number of hours). 8 D. Reasonableness of Hourly Rate 9 The EAJA provides that the Court may award reasonable attorney fees “based upon 10 prevailing market rates for the kind and quality of the services furnished,” but “attorney 11 fees shall not be awarded in excess of $125 per hour unless the court determines that an 12 increase in the cost of living or a special factor, such as the limited availability of qualified 13 attorneys for the proceedings involved, justifies a higher fee.” 28 U.S.C. § 2412(d)(2)(A). 14 Plaintiff’s counsel bills at an hourly rate of $205.25 and his paralegal bills at an hourly rate 15 of $143. ECF No. 21-1. Plaintiff’s counsel has been practicing social security law for 23 16 years, and his paralegal has been working at the firm for 22 years. ECF No. 21 at 3–4. 17 The Ninth Circuit’s hourly EAJA rate for attorney work performed in 2019, factoring in an 18 increase in the cost of living, was $205.25. See United States Courts for the Ninth 19 Circuit, Statutory Maximum Rates Under the Equal Access to Justice Act, 20 https://www.ca9.uscourts.gov/content/view.php?pk_id=0000000039 (last visited Aug. 28, 21 2020) [hereinafter Statutory Maximum Rates Under EAJA]; see also Thangaraja v. 22 Gonzales, 428 F.3d 870, 876 (9th Cir. 2005) (“EAJA provides for an upward adjustment 23 of the $125 rate contained in the statute, based on cost-of-living increases”) (citing 28 24 U.S.C. § 2412(d)(2)(A)); see, e.g., Black, 2019 WL 2436393, at *1 (considering the Ninth 25 Circuit’s hourly EAJA rate a reasonable rate); Ulugalu, 2018 WL 2012330, at *3 (same). 26 Also, “Plaintiff is entitled to an award of fees for attorney hours spent on the EAJA fee 27 application.” Kuharski v. Colvin, No. 12-cv-1055-AC, 2015 WL 1530507, at *7 (E.D. Cal. 28 Apr. 3, 2015); compare ECF No. 21-1 at 2 (spending 0.7 hours on July 27, 2020 preparing 1 EAJA request) with Statutory Maximum Rates Under EAJA (attorney rate for first half of 2 2020 is $206.77). 3 Furthermore, the Court may approve paralegal rates at prevailing market rates. 4 Nadarajah, 569 F.3d at 918. Courts may “look[] to the United States Consumer Law 5 Attorney Fee Survey Report [] to determine the market rate for paralegals.” Ulugalu, 2018 6 WL 2012330, at *4 (using the figures in United States Consumer Law Attorney Fee Survey 7 Report to assess whether the requested paralegal hourly rate was reasonable); Schneider v. 8 Soc. Sec. Admin., No. 12-cv-01375-JAD-GFW, 2014 WL 4251590, at *3 (D. Nev. Aug. 9 27, 2014) (finding an award reasonable based on figures provided in United States 10 Consumer Law Attorney Fee Survey Report); but cf. Diaz v. Kubler Corp., No. 12cv1742- 11 MMA-BGS, 2014 U.S. Dist. LEXIS 199581, at *13 (S.D. Cal. Mar. 26, 2014) (“the Court 12 finds the [Consumer Law Attorney Fee Survey] Report is not ‘satisfactory evidence’ to 13 establish the prevailing market rates of comparable attorneys in the Southern District of 14 California”) (emphasis omitted); Branco v. Credit Collection Servs., No. 10cv1242-MCA- 15 EFB, 2011 WL 6003877, at *3 (S.D. Cal. Dec. 1, 2011) (“Plaintiff’s contention that the 16 rates are reasonable as evidenced by the United States Consumer Law Attorney Fee Survey 17 Report is unavailing …”). Here, the United States Consumer Law Attorney Fee Survey 18 Report provides that the median hourly rate for all paralegals in California is $143. ECF 19 No. 21 at 4; ECF No. 21-2 at 19.3 However, on June 23, 2020, the same law firm 20 representing the plaintiff in this action represented that the same paralegal who performed 21 work in this action billed $130 per hour for work completed during the same time period 22 in another social security case before this Court. Compare ECF No. 21-1 at 1 (billing $143 23 per hour for Enedina Perez’s work completed from April 2019 to July 2020) with Exhibit 24 to Joint Motion for EAJA Fees, ECF No. 26-2, Baker v. Saul, No. 3:19cv925-AHG (S.D. 25 26 3 Ronald L. Burge, United States Consumer Law Attorney Fee Survey Report, at 58 (2017– 27 2018), https://burdgelaw.com/wp-content/uploads/2019/10/US-Consumer-Law-Attorney- Fee-Survey-Report-2017-2018.pdf. 28 1 Cal. June 23, 2020) (billing $130 per hour for Enedina Perez’s work completed from 2 April 2019 to April 2020). Upon due consideration, the Court finds that the hourly rate 3 billed by counsel and the agreed, discounted hourly rate billed by the paralegal4 are 4 reasonable. 5 E. Assignment of Rights to Counsel 6 The parties jointly request that “[f]ees shall be made payable to Beatriz B[.], but if 7 the Department of the Treasury determines that Beatriz B[.] does not owe a federal debt, 8 then the government shall cause the payment of fees, expenses and costs to be made directly 9 to Law Offices of Lawrence D. Rohlfing, pursuant to the assignment executed by Beatriz 10 B[.]” ECF No. 19 at 2; see ECF No. 19-1 (agreement signed by Plaintiff stating that “Client 11 … assigns such [EAJA] fee awards to Attorney”). 12 The Supreme Court has held that “a § 2412(d) fees award is payable to the litigant 13 and is therefore subject to a Government offset to satisfy a pre-existing debt that the litigant 14 owes the United States.” Astrue v. Ratliff, 560 U.S. 586, 588–89 (2010). In Ratliff, 15 plaintiff’s counsel was successful in plaintiff’s Social Security benefits suit and the court 16 granted the unopposed motion for fees under the EAJA. Id. However, before paying the 17 fee award, the government discovered that plaintiff owed the United States a debt that 18 predated the award, and accordingly, the government sought an offset of that owed amount. 19 Id. Plaintiff’s counsel intervened and argued that the fee award belonged to plaintiff’s 20 21 22 4 Here, the total fee was calculated to be $4,488.57 and the agreed amount requested was 23 $4,450.00, which is a $38.57 difference. ECF No. 21-1 at 2; ECF No. 19 at 1–2. Thus, Ms. Perez’s hourly rate based on the compromise settlement is $131.66 per hour ($38.57 24 divided by the 3.4 hours she worked equals a savings of $11.34 per hour). As reduced, the 25 Court finds the hourly rate for Plaintiff’s paralegal reasonable. See, e.g., Toni Lynn B. v. Saul, No. 19cv925-AHG, 2020 WL 4001981, at *3 (S.D. Cal. Jul. 15, 2020) (approving 26 paralegal’s hourly rate of $130 for EAJA award, for work performed in 2019 and 2020); 27 Black, 2019 WL 2436393, at *1 (approving paralegal’s hourly rate of $130 for EAJA award); Smith v. Berryhill, 17cv2108-CAB-RNB, 2019 U.S. Dist. LEXIS 89885, at *5 28 1 counsel, and thus was not subject to offset for the litigant’s federal debts. Id. The Supreme 2 Court disagreed, finding that “Congress knows how to make fee awards payable directly 3 to attorneys where it desires to do so,” and because the fee was payable to a “prevailing 4 party,” Congress intended the fee to go to the litigant, and not the attorney. Id. at 595–97. 5 Nonetheless, “district courts have recognized that Ratliff does not prevent payment 6 of a fee award directly to the attorney where there has been a valid assignment and the 7 plaintiff does not owe a debt to the government.” Ulugalu, 2018 WL 2012330, at *4–*5 8 (reviewing Plaintiff’s assignment agreement and ordering that the EAJA fees be paid to 9 plaintiff’s counsel, subject to any administrative offset due to outstanding federal debt); 10 Bell v. Berryhill, No. 16cv809-MMC, 2018 WL 452110, at *5 (N.D. Cal. Jan. 17, 2018) 11 (same); Blackwell v. Astrue, No. CIV-08-1454-EFB, 2011 WL 1077765, at *4–*5 (E.D. 12 Cal. Mar. 21, 2011) (same); Castaneda v. Astrue, No. EDCV-09-1850-OP, 2010 U.S. Dist. 13 LEXIS 72887, at *6–*8 (C.D. Cal. Jul. 20, 2010) (same); see also Calderon v. Astrue, No. 14 08cv1015-GSA, 2010 WL 4295583, at *8 (E.D. Cal. Oct. 21, 2010) (“Plaintiff, as the 15 prevailing litigant, would normally be awarded the fees described above, subject to any 16 offset for applicable government debts. Defendant, however, seems to be content to permit 17 payment to Plaintiff’s counsel if Plaintiff does not have any qualifying government debt . 18 . . . This Court finds the government’s position to be reasonable and will therefore permit 19 payment to Plaintiff’s counsel provided Plaintiff has no government debt that requires 20 offset”); cf. Hernandez v. Berryhill, No. 15cv1322-DB, 2017 WL 2930802, at *3 (E.D. 21 Cal. July 10, 2017) (declining to order that the EAJA fees be paid to plaintiff’s counsel, 22 subject to any administrative offset due to outstanding federal debt, because the parties 23 failed to produce evidence of an assignment agreement). 24 Here, Plaintiff assigned her right to EAJA fees to her attorney. ECF No. 19-1. 25 Accordingly, should Plaintiff not have a debt that is subject to offset, the award of fees may 26 be paid directly to counsel. 27 III. CONCLUSION 28 As set forth above, it is hereby ordered that: 1 1. The parties’ Joint Motion for the Award and Payment of Attorney Fees and 2 Expenses (ECF No. 19) is GRANTED; 3 2. Plaintiff is awarded attorney fees under the EAJA in the amount of $4,450.00. 4 || See ECF No. 19 at 1; and 5 3. Pursuant to Astrue v. Ratliff, 560 U.S. 586, 588-89 (2010), any payment shall 6 made payable to Plaintiff and delivered to Plaintiff’s counsel, unless Plaintiff does not 7 || owe a federal debt. If the United States Department of the Treasury determines that Plaintiff 8 ||does not owe a federal debt, the government shall accept Plaintiffs assignment of EAJA 9 and pay fees directly to Plaintiff’s counsel. See ECF No. 19 at 2; see, e.g., Mendoza v. 10 || Saul, No. 18cv925-SKO, 2020 WL 406773, at *5 (E.D. Cal. Jan 24, 2020). 11 12 IT IS SO ORDERED. 13 || Dated: September 1, 2020 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