Hauth v. Kijakazi ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 |} DONALD H., Case No.: 3:20-cv-02109-RBM 12 Plaintiff, ORDER GRANTING JOINT 13 |] V. MOTION FOR THE AWARD AND 14 || KILOLO KUAKAZI, ACTING PAYMENT OF ATTORNEY FEES COMMISSIONER OF SOCIAL AND EXPENSES PURSUANT TO 15 THE EQUAL ACCESS TO JUSTICE SECURITY, ACT 16 Defendant. 17 [Doc. 15] 19 20 On October 27, 2020, Plaintiff, Donald H. (“Plaintiff”) filed a complaint against the 21 ||Commissioner of Social Security (“Commissioner” or “Defendant”),! seeking judicial 22 ||review of the Commissioner’s decision denying her application for Social Security 23 ||Disability Insurance and Supplemental Security Income benefits. (Doc. 1.) The parties 24 |/jointly moved to remand the action to the Social Security Administration for further 25 || proceedings pursuant to sentence four of 42 U.S.C. § 405(g). (Doc. 10.) On June 8, 2021, 26 27 ||' Kilolo Kijakazi became the Acting Commissioner of Social Security on July 9, 2021 and is therefore substituted for Andrew M. Saul as Defendant. See 42 U.S.C. § 405(g); FED. 28 IR CIV. P. 25(d). 1 ||the undersigned granted the motion and remanded the action to the Social Security 2 || Administration for further administrative proceedings consistent with the terms set forth in 3 ||/the parties’ joint motion. (Doc. 11.) 4 On September 1, 2021, the parties filed a joint motion for the award and payment of 5 attorney fees and expenses (“Joint Motion”) pursuant to the Equal Access to Justice Act, 6 U.S.C. § 2412(d) (“SEAJA”), which was denied without prejudice for failure to attach 7 itemized statement as required under Section 2412(d)(1)(B). (Docs. 13, 14.) The parties 8 renew their Joint Motion (Doc. 15) and move for an award to Plaintiff of attorney fees 9 ||and expenses in the amount of six hundred fifty-four dollars and fifty cents ($654.50) 10 |}under the EAJA and costs in the amount of four hundred twelve dollars and fifteen cents 11 || ($412.15) under 28 U.S.C. § 1920. (Doc. 15 at 1-2.) In their Joint Motion, the parties state 12 these amounts represent compensation for all legal services rendered on behalf of Plaintiff 13 || by his counsel in connection with this civil action, in accordance with 28 U.S.C. § 2412(d). 14 || Ud. at 2.) 15 The EAJA allows a prevailing party to seek attorney’s fees from the United States 16 || within thirty days of final judgment. See 28 U.S.C. § 2412(d). “A plaintiff who obtains a 17 ||sentence four remand is considered a prevailing party for purposes of attorneys’ fees.” 18 || Akopyan v. Barnhart, 296 F.3d 852, 854 (9th Cir. 2002) (internal citation omitted). 19 || Therefore, Plaintiff is the prevailing party in this action for purposes of awarding attorney’s 20 || fees. 21 “A sentence four remand becomes a final judgment, for purposes of attorneys’ fees 22 |/claims brought pursuant to the EAJA, 28 U.S.C. § 2412(d), upon expiration of the time for 23 ||appeal.” Jd. (internal citation omitted). Federal Rule of Appellate Procedure 4(a)(1)(B) 24 provides for a sixty-day appeal period in cases in which the United States is a party or a 25 || United States officer or employee is sued in an official capacity. Here, the sixty-day appeal 26 27 28 | || period for the undersigned’s June 8, 2021 order and judgment expired on or about August 2 ||9, 2021. The sentence four remand is now a final judgment and the parties’ Joint Motion 3 timely.’ + Pursuant to the EAJA, the amount of fees awarded are “based upon prevailing 5 ||market rates for the kind and quality of the services furnished .. .” See 28 U.S.C. § 6 ||2412(d)(2)(A). “[A]ttorney fees shall not be awarded in excess of $125.00 per hour unless 7 ||the court determines that an increase in the cost of living or a special factor, such as the 8 || limited availability of qualified attorneys for the proceedings involved, justifies a higher 9 || fee.” 28 U.S.C. § 2412(d)(2)(A)(ii). The Ninth Circuit’s 2020 statutory maximum hourly 10 |/rates under the EAJA, adjusted for increases in the cost of living, was $207.78. See 11 |/“Statutory Maximum Rates Under the Equal Access to Justice Act,” 12 || https://www.ca9.uscourts.gov/attorneys/statutory-maximum-rates/ (last visited Sept. 23, 13 2021) (citing 28 U.S.C. § 2412 (d)(2(A): Thangaraja v. Gonzales, 428 F.3d 870, 876-77 14 || (9th Cir. 2005); Ninth Circuit Rule 39—1.6). 15 At an hourly rate of $207.78, the requested fee award represents compensation for 16 || approximately 3.15 hours of work performed by Plaintiffs counsel, four-hundred dollars 17 || ($400.00) for a filing fee, and twelve dollars and fifteen cents ($12.15) for postage. (Doc. 18 || 15—2 at 1); see Thorne v. Saul, No.: 18cv1874-MMA (LL), 2019 WL 3974088, at *2 (S.D. 19 Aug. 22, 2019) (granting request for filing cost of $400.00 as recoverable costs under 20 EAJA which compensates for fees of the clerk); see also Int’l Woodworkers of Am. v. 21 || Donovan, 792 F.2d 762, 767 (9th Cir. 1985) (affirming district court’s award of costs under 22 || EAJA, including postage expenses). Work performed by Plaintiffs counsel consists of 23 || reviewing the case, filing a complaint (Doc. 1), and serving Defendant with the summons 24 ||and complaint. (Doc. 15—2 at 1.) Having reviewed the parties’ Joint Motion and relevant 25 26 22 38 The parties’ initial Joint Motion filed September 1, 2021 will be considered for purposes of determining timeliness. (Doc. 13.) | |/authority, the undersigned finds the request for attorney fees, expenses, and costs 2 ||reasonable. (Doc. 15.) 3 For good cause shown, the Joint Motion is GRANTED, subject to the terms of the 4 || parties’ Joint Motion. Accordingly, the undersigned AWARDS Plaintiff attorney’s fees 5 expenses in the amount of six hundred fifty-four dollars and fifty cents ($654.50) 6 || and costs in the amount of four hundred twelve dollars and fifteen cents ($412.15). 7 IT IS SO ORDERED. 8 || Dated: September 23, 2021 9 Jo Bond oiling) □□ 10 HON. RUTH BERMUDEZ MONTENEGRO ll UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20. 21 22 23 24 25 26 Zt 28