Michaud v. Kijakazi

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 LISA M., Case No.: 21-cv-01501-JLB 12 Plaintiff, ORDER GRANTING JOINT 13 v. MOTION FOR THE AWARD AND PAYMENT OF ATTORNEY FEES 14 KILOLO KIJAKAZI, Acting AND EXPENSES PURSUANT TO Commissioner of Social Security, 15 THE EQUAL ACCESS TO JUSTICE Defendant. ACT, 28 U.S.C. § 2412(d) AND COSTS 16 PURSUANT TO 28 U.S.C. § 1920 17 [ECF No. 25] 18 19 On August 24, 2021, Plaintiff Lisa M. (“Plaintiff”) filed a complaint seeking judicial 20 review of the denial of her applications for social security disability benefits and 21 supplemental security income (“SSI”) benefits by the Commissioner of Social Security (the 22 “Commissioner”). (ECF No. 1.) The Commissioner filed the administrative record on 23 May 20, 2022. (ECF No. 11.) On September 12, 2022, Plaintiff filed a merits brief. (ECF 24 No. 19.) 25 The parties filed a joint motion for voluntary remand to agency pursuant to sentence 26 four of 42 U.S.C. § 405(g) and entry of judgment on October 6, 2022. (ECF No. 22.) On 27 October 7, 2022, the Court granted the joint motion and remanded the matter to the Social 28 Security Administration (“SSA”) for further administrative proceedings pursuant to 1 sentence four of 42 U.S.C. § 405(g), and directed the Clerk of Court to enter final judgment 2 in favor of Plaintiff. (ECF Nos. 23, 24.) 3 Now before the Court is a joint motion for the award and payment of attorney fees 4 and expenses pursuant to the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d), 5 and costs pursuant to 28 U.S.C. § 1920. (ECF No. 25.) The parties jointly ask the Court 6 to award Plaintiff attorney fees and expenses in the amount of $4,700.001 under the EAJA. 7 (Id. at 1.) This amount represents compensation for all legal services rendered on behalf 8 of Plaintiff by counsel in connection with this action. (Id.) 9 A litigant is entitled to attorney’s fees under the EAJA if: “(1) [s]he is the prevailing 10 party; (2) the government fails to show that its position was substantially justified or that 11 special circumstances make an award unjust; and (3) the requested fees and costs are 12 reasonable.” Carbonell v. I.N.S., 429 F.3d 894, 898 (9th Cir. 2005) (citing Perez–Arellano 13 v. Smith, 279 F.3d 791, 793 (9th Cir. 2002)); see also 28 U.S.C. § 2412(d)(1)(A). “A 14 plaintiff who obtains a sentence four remand” under 42 U.S.C. § 405(g), even when further 15 administrative review is ordered, “is considered a prevailing party for purposes of 16 attorneys’ fees.” Akopyan v. Barnhart, 296 F.3d 852, 854 (9th Cir. 2002) (citing Schalala 17 v. Schaefer, 509 U.S. 292, 297–98, 301–02 (1993)). 18 The prevailing party is eligible to seek attorney’s fees within thirty days of final 19 judgment in the action. 28 U.S.C. § 2412(d)(1)(B). “A sentence four remand becomes a 20 final judgment, for purposes of attorneys’ fees claims brought pursuant to the EAJA, upon 21 expiration of the time for appeal.” Akopyan, 296 F.3d at 854 (internal citation omitted) 22 (citing Schaefer, 509 U.S. at 297). Under Federal Rule of Appellate Procedure 4(a)(1)(B), 23 the time for appeal expires sixty days after entry of judgment if one of the parties is a 24 United States officer sued in an official capacity. Therefore, a motion for attorney’s fees 25 26 27 1 In Plaintiff’s itemization of fees, the total fee was calculated to be $4,888.69. (ECF No. 25-1.) However, the parties negotiated a lesser amount and, in the parties’ joint 28 1 || filed after a sentence four remand is timely if filed within thirty days after Rule 4(a)’s sixty- 2 ||day appeal period has expired. Hoa Hong Van v. Barnhart, 483 F.3d 600, 607 (9th Cir. 3 |}2007). 4 Here, the Court finds that the parties’ joint motion is timely, Plaintiff 1s the prevailing 5 || party in this action, the Commissioner has not met her burden of showing her position was 6 substantially justified or that special circumstances make an award unjust, and the 7 stipulated amount of fees is reasonable.? Accordingly, the Court GRANTS the parties’ 8 motion and AWARDS Plaintiff $4,700 in attorney fees and expenses pursuant to 9 ||28 U.S.C. § 2412, subject to the terms of the joint motion. 10 IT IS SO ORDERED. 11 Dated: November 17, 2022 . 12 bande B n. Jill L. Burkhardt ited States Magistrate Judge 14 15 16 17 18 19 ||? Counsel’s hourly rates are in line with the Ninth Circuit’s EAJA hourly rate. (ECF 20 No. 25-1.) Plaintiff's counsel billed an hourly rate of $217.54 in 2021 and $231.49 in 2022, and their paralegal billed an hourly rate of $143. (/d.) The Ninth Circuit’s EAJA hourly 21 ||rate was $217.54 for work performed in 2021 and $231.49 for work performed in the first 99 half of 2022. See Statutory Maximum Rates Under the EAJA, U.S. Courts for the Ninth Circuit, https://www.ca9.uscourts.gov/attorneys/statutory-maximum-rates/ (last visited 23 10, 2022). The paralegal rate of $143.00 is also consistent with the median hourly rate for paralegals in San Diego. See Nadarajah v. Holder, 569 F.3d 906, 918 (9th Cir. 2009) (courts may approve paralegal rates at prevailing market rates); Roland S. v. Saul, 25 || No. 3:20-CV-01068-AHG, 2021 WL 4081567, at *3 (S.D. Cal. Sept. 7, 2021) (finding an hourly rate of $143 for work done by a paralegal in 2020 and 2021 in the San Diego area © be reasonable based on the prevailing market rate). See also Eryberto H. v. Kijakazi, 27 || 20-cv-02427-JLB (S.D. Cal.), ECF No. 18 (finding an award of $4,600 in attorney’s fees 28 and expenses reasonable after parties jointly moved to remand upon Plaintiff filing a merits brief).