Geary v. Saul ( 2021 )

1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT 11 SOUTHERN DISTRICT OF CALIFORNIA 12 13 GUILLERMO G., Case No.: 20-cv-01167-JLB 14 Plaintiff, ORDER GRANTING AMENDED 15 v. JOINT MOTION FOR THE AWARD AND PAYMENT OF ATTORNEY 16 KILOLO KIJAKAZI, Acting FEES PURSUANT TO THE EQUAL Commissioner of Social Security, 17 ACCESS TO JUSTICE ACT, 28 Defendant. U.S.C. § 2412(d) AND COSTS 18 PURSUANT TO 28 U.S.C. § 1920 19 [ECF No. 16] 20 21 22 Before the Court is an amended joint motion for an order awarding Plaintiff 23 $2,100.00 in attorney’s fees pursuant to the Equal Access to Justice Act (“EAJA”), 28 24 U.S.C. § 2412(d), and costs in the amount of $400.00 under 28 U.S.C. § 1920. (ECF No. 25 16.) For the following reasons, the amended joint motion is GRANTED. 26 /// 27 /// 28 /// 1 I. BACKGROUND 2 The underlying action involves Plaintiff’s appeal of the Social Security 3 Administration’s denial of his application for disability insurance benefits. (ECF No. 1.) 4 After the Commissioner of Social Security filed the administrative record, the Court 5 directed the parties to engage in good faith settlement discussions and file a joint notice of 6 settlement, if appropriate, no later than July 19, 2021. (ECF No. 10.) On July 16, 2021, 7 the parties filed a joint motion for voluntary remand to the agency for further administrative 8 proceedings pursuant to sentence four of 42 U.S.C. § 405(g) and entry of judgment. (ECF 9 No. 11.) That same day, the Court granted the joint motion and remanded the matter to the 10 agency for further administrative proceedings pursuant to sentence four of 42 U.S.C. 11 § 405(g). (ECF No. 12.) The Clerk of Court was directed to enter final judgment in favor 12 of Plaintiff, and against Defendant, reversing the final decision of the Commissioner. (Id.) 13 Judgment was entered on July 19, 2021. (ECF No. 13.) 14 II. DISCUSSION 15 A litigant is “entitled to attorney’s fees and costs if: (1) he is the prevailing party; 16 (2) the government fails to show that its position was substantially justified or that special 17 circumstances make an award unjust; and (3) the requested fees and costs are reasonable.” 18 Carbonell v. I.N.S., 429 F.3d 894, 898 (9th Cir. 2005) (citing Perez–Arellano v. Smith, 279 19 F.3d 791, 793 (9th Cir. 2002)); see also 28 U.S.C. § 2412(d)(1)(A). 20 Here, Plaintiff is entitled to EAJA fees and costs. First, the Court remanded this case 21 for further administrative proceedings pursuant to sentence four of 42 U.S.C. § 405(g) and 22 entered judgment for Plaintiff. (ECF Nos. 12; 13.) Plaintiff is therefore the prevailing 23 party, for “[a] plaintiff who obtains a sentence four remand,” even when further 24 administrative review is ordered, “is considered a prevailing party for purposes of 25 attorneys’ fees.” Akopyan v. Barnhart, 296 F.3d 852, 854 (9th Cir. 2002) (citing Schalala 26 v. Schaefer, 509 U.S. 292, 297–98, 301–02 (1993)); see also Roland S. v. Saul, No. 3:20- 27 CV-01068-AHG, 2021 WL 4081567, at *2 (S.D. Cal. Sept. 7, 2021) (finding the plaintiff 28 1 to be the prevailing party where the case was remanded pursuant to sentence four of 42 2 U.S.C. § 405(g) based on a joint motion for voluntary remand).1 3 Second, the Commissioner makes no argument that her position was substantially 4 justified. See Meier v. Colvin, 727 F.3d 867, 870 (9th Cir. 2013) (“It is the government’s 5 burden to show that its position was substantially justified.”). Rather, the Commissioner 6 filed a joint motion to voluntarily remand this case for further administrative proceedings 7 and the instant fee request comes to the Court by way of a joint motion. See Ulugalu v. 8 Berryhill, No. 317CV01087GPCJLB, 2018 WL 2012330, at *3 (S.D. Cal. Apr. 30, 2018) 9 (finding the Commissioner did not demonstrate substantial justification for her position 10 where she filed a voluntary stipulation for remand and the matter was referred to an 11 administrative law judge to make a new determination as to the plaintiff’s disability). 12 Finally, Plaintiff’s requested fees and costs are reasonable. Plaintiff’s counsel 13 declares that he spent 8.5 hours at an hourly rate of $207.70 working on this case and his 14 paralegal spent 2.4 hours at an hourly rate of $143.00 on the case, for a discount total of 15 $2,100.00.2 (ECF No. 16-2.) The hours are reasonable in light of Plaintiff’s results in the 16 case. See Hensley v. Eckerhart, 461 U.S. 424, 435 (1983) (“Where a plaintiff has obtained 17 excellent results, his attorney should recover a fully compensatory fee.”); see also Roland 18 S., 2021 WL 4081567, at *2 (finding 5.36 hours billed by counsel and 3.4 hours billed by 19 paralegals for a total of 8.76 hours to be reasonable when the parties engaged in court- 20 21 1 The Court notes that the parties’ original joint motion for fees (ECF No. 14), which 22 the Court denied without prejudice (ECF No. 15), was timely. See Akopyan, 296 F.3d at 23 854 (“A sentence for remand becomes a final judgment, for purposes of attorneys’ fees claims brought pursuant to the EAJA, 28 U.S.C. § 2412(d), upon expiration of the time for 24 appeal.” (citations omitted)); see also Fed. R. App. P. 4(a)(1)(B) (providing that the time 25 for appeal expires sixty days after entry of judgment if one of the parties is a United States officer sued in an official capacity); 28 U.S.C. § 2412(d)(1)(B) (providing that the 26 prevailing party is eligible to seek attorney’s fees within thirty days of final judgment). 27 2 In Plaintiff’s itemization of fees, the total fee was calculated to be $2,108.65. (ECF No. 16-2.) However, in the parties’ joint motion, the total fee requested was $2,100. (ECF 28 1 ordered settlement discussions and filed a joint motion for voluntary remand). Notably, 2 this case was resolved early in Plaintiff’s favor. See Costa v. Comm’r of Soc. Sec. Admin., 3 690 F.3d 1132, 1136 (9th Cir. 2012) (noting that “[m]any district courts have noted that 4 twenty to forty hours is the range most often requested and granted in social security 5 cases”). 6 The hourly rates are also reasonable. Counsel’s hourly rates are in line with the 7 Ninth Circuit’s EAJA hourly rate. Plaintiff’s counsel billed hours in 2020 and 2021. The 8 Ninth Circuit’s EAJA hourly rate was $207.78 for work performed in 2020 and $213.74 9 for work performed in the first half of 2021. See Statutory Maximum Rates Under the 10 Equal Access to Justice Act, U.S. Courts for the Ninth Circuit, 11 https://www.ca9.uscourts.gov/content/view.php?pk_id=0000000039 (last visited 12 September 17, 2021). Accordingly, Plaintiff’s counsel’s rate is under the Ninth Circuit’s 13 EAJA rate for the years at issue. See Roland S., 2021 WL 4081567, at *3 (finding hourly 14 rates consistent with the Ninth Circuit’s EAJA rates to be reasonable). The paralegal’s rate 15 of $143.00 is also consistent with the median hourly rate for paralegals in San Diego.3 The 16 Court may approve paralegal rates at prevailing market rates. Nadarajah v. Holder, 569 17 F.3d 906, 918 (9th Cir. 2009). 18 In addition, the requested costs are reasonable. A prevailing party may recover the 19 costs necessary for the preparation of the case. 28 U.S.C. § 2412(d). Plaintiff paid the 20 requisite $400 filing fee to commence this action. (ECF No. 1.) Courts have determined 21 that filing fees are recoverable under the EAJA. See e.g., Truong v. Berryhill, No. 22 23 3 Courts may consider the United States Consumer Law Attorney Fee Survey Report 24 (the “Report”) to determine the appropriate market rate for paralegals in a given area. See, 25 e.g., Ulugalu, 2018 WL 2012330, at *4; Rosemary G. V. v. Saul, No. 3:19-CV-00715- RBM, 2020 WL 6703123, at *5 (S.D. Cal. Nov. 12, 2020) (approving a $130 rate for 26 paralegal fees, but noting that the Report for 2017–2018 provides that the median hourly 27 rate for paralegals in San Diego is $147); Roland S., 2021 WL 4081567, at *3 (finding an hourly rate of $143 for work done by a paralegal in 2020 and 2021 in the San Diego area 28 1 }}317CV02179BENRNB, 2019 WL 1863655, at *5 (S.D. Cal. Apr. 24, 2019); Scott B. C. v. 2 || Comm’r of Soc. Sec., No. 6:18-CV-01738-BR, 2021 WL 2593764, at *6 (D. Or. June 24, 3 2021) (collecting cases). 4 ||. CONCLUSION 5 For the foregoing reasons, the Court GRANTS the parties’ joint motion (ECF No. 6 and awards Plaintiff fees in the amount of $2,100.00, as authorized by 28 U.S.C. § 7 ||2412, and costs in the amount of $400.00, as authorized by 28 U.S.C. § 1920, subject to 8 terms of the Joint Motion. 9 IT IS SO ORDERED. 10 || Dated: September 23, 2021 i U Bur thane 12 n. Jill L. Burkhardt 3 ited States Magistrate Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28