Frank v. Kijakazi

2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DANA F., Case No.: 3:20-cv-01548-AHG 12 Plaintiff, ORDER GRANTING AMENDED 13 v. JOINT MOTION FOR ATTORNEY FEES UNDER THE EQUAL ACCESS 14 KILOLO KIJAKAZI, Commissioner of TO JUSTICE ACT Social Security, 15 Defendant. [ECF No. 22] 16 17 18 19 20 21 22 23 24 25 26 27 28 2 Fees Under the Equal Access to Justice Act (EAJA) 28 U.S.C. § 2412(d). ECF No. 22. The 3 parties have filed the Amended Joint Motion in response to the Court’s Order requiring 4 them to file supplemental briefing regarding the reasonableness of the hours and rates billed 5 by Plaintiff’s counsel, as well as evidence of the assignment agreement between Plaintiff 6 and her counsel. See ECF Nos. 20, 21. 7 For the reasons set forth below, the Court GRANTS the parties’ joint motion. 8 I. BACKGROUND 9 The underlying action involves Plaintiff’s appeal of the Social Security 10 Administration’s denial of her application for disability insurance benefits at the agency 11 level. ECF No. 1. After the Commissioner of Social Security (“Defendant”) filed the 12 administrative record, the Court issued a Scheduling Order requiring the parties to file a 13 Joint Motion for Judicial Review of the Commissioner’s decision no later than 14 November 1, 2021, a deadline which the Court later extended to November 30, 2021 at the 15 parties’ joint request. ECF Nos. 13, 16. 16 On November 16, 2021, the parties filed a joint motion for voluntary remand 17 pursuant to sentence four of 42 U.S.C. § 405(g). ECF No. 17. The same day, the Court 18 granted the joint motion, remanded the case to the Commissioner of Social Security for 19 further administrative action, and entered a final judgment reversing the final decision of 20 the Commissioner. ECF No. 18. A Clerk’s Judgment was then entered. ECF No. 19. 21 On February 14, 2022, the parties filed their original Joint Motion for Attorney Fees 22 under the Equal Access to Justice Act (“EAJA”). ECF No. 20. The Court required the 23 parties to submit supplemental briefing to establish the reasonableness of the fee request 24 and the fact of Plaintiff’s assignment of her EAJA claim for attorney fees to her counsel. 25 ECF No. 21. On February 18, 2022, the parties complied with the Court’s order by filing 26 the instant amended joint motion, which incorporates by reference the assertions in the 27 original Joint Motion and includes the additional required information. ECF No. 22. 28 2 fees and expenses in the amount of $7,500.00 under the Equal Access to Justice Act, 28 3 U.S.C. § 2412(d). Id. at 1. In support of the request, Plaintiff’s counsel submitted a time 4 sheet showing that four attorneys worked on Plaintiff’s case for a total of 40 hours1 of 5 work, and provided the noncontingent hourly rates of each attorney. ECF No. 22-1. 6 Specifically, partner Karl Osterhout completed 13.6 hours of work with a typical billing 7 rate of $400 per hour, partner Hannalore Merritt completed 1.5 hours of work with a typical 8 billing rate of $300 per hour, senior associate Lindsey Sbrolla completed 24.6 hours of 9 work with a typical billing rate of $225 per hour, and associate Meghan Lambert completed 10 of .3 hours of work with a typical billing rate of $175 per hour. Id. 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 February 14, 2022, 90 days after 19 final judgment was filed on November 16, 2021. The motion was filed 30 days after the 20 60-day period expired and falls within the 30-day filing period. Accordingly, the motion 21 for attorney fees is timely. 22 III. DISCUSSION 23 24 25 1 The calculated “total” on the Itemization of Time is reported as 39.8 hours. However, the 26 Court’s calculation shows that the sum of the itemized time is 40 hours (13.6 + 1.5 + 24.6 + .3). See ECF No. 22-1. 27 28 2 Federal Rule of Appellate Procedure 4(a) provides that a “notice of appeal may be filed by any party within 60 days after entry of the judgment or order appealed from” if one of 2 prevailing party; (2) the government fails to show that its position was substantially 3 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 elements 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 Schaefer, 509 U.S. at 302). Here, as discussed above, Plaintiff is the prevailing 11 party because this case was remanded pursuant to sentence four of 42 U.S.C. § 405(g). 12 Akopyan v. Barnhart, 296 F.3d 852, 854 (9th Cir. 2002) (“A plaintiff who obtains a 13 sentence four remand is considered a prevailing party for purposes of attorneys’ fees.”); 14 Ulugalu, 2018 WL 2012330, at *2 (in a case where the parties jointly stipulated to remand, 15 “because the Court granted the Commissioner’s proposed order for remand and entered 16 judgment in favor of Plaintiff pursuant to sentence four, Plaintiff is a prevailing party”); 17 see ECF Nos. 17, 18 (remanding the case pursuant to sentence four of 42 U.S.C. § 405(g)). 18 B. Substantial Justification 19 The government bears the burden of proving that its position, both in the underlying 20 administrative proceedings and in the subsequent litigation, was substantially justified. 21 Meier v. Colvin, 727 F.3d 867, 870 (9th Cir. 2013). Here, the parties have stipulated to the 22 EAJA amount, and explain that the stipulation “constitutes a compromise settlement of 23 Plaintiff’s request for EAJA attorney fees, and does not constitute an admission of liability 24 on the part of Defendant under the EAJA.” ECF No. 20 at 2. Although Defendant’s 25 stipulation does not constitute an admission of liability on its part, the compromise nature 26 of the request is sufficient to find the second element met, given that “Defendant has 27 stipulated to the attorney[] fees and does not argue that the prevailing party’s position was 28 substantially unjustified.” Krebs v. Berryhill, 16cv3096-JLS-BGS, 2018 WL 3064346, at *2 (S.D. Cal. June 21, 2018); see also Black v. Berryhill, No. 18cv1673-JM-LL, 2019 WL 2 light of the joint nature of the parties’ request and the court’s prior order remanding this 3 action, the government has not shown that its position was substantially justified.”). 4 Furthermore, “[b]ecause the Commissioner filed a voluntary stipulation for remand and the 5 matter was referred to an Administrative Law Judge to make a new determination as to 6 Plaintiff’s disability, the Court is persuaded the Commissioner did not have substantial 7 justification for denying Plaintiff disability rights.” Ulugalu, 2018 WL 2012330, at *3. 8 C. Reasonableness of Hours 9 The parties seek a fee award for 40 hours billed by Plaintiff’s counsel. ECF No. 22- 10 1. The Court finds the number of hours billed by Plaintiff’s counsel to be reasonable. See 11 28 U.S.C. § 2412(d); Nadarajah v. Holder, 569 F.3d 906, 918 (9th Cir. 2009); see also 12 Costa v. Comm’r of SSA, 690 F.3d 1132, 1136 (9th Cir. 2012) (reiterating the Ninth 13 Circuit’s previous position that “‘lawyers are not likely to spend unnecessary time on 14 contingency fee cases in the hope of inflating their fees’ because ‘the payoff is too 15 uncertain.’ [] As a result, courts should generally defer to the ‘winning lawyer’s 16 professional judgment as to how much time he was required to spend on the case.’”) 17 (quoting Moreno v. City of Sacramento, 534 F.3d 1106, 1112–13 (9th Cir. 2008)). The 18 number of hours billed is within the typical range seen in social security appeals. See, e.g., 19 Costa, 690 F.3d at 1136 (noting “[m]any district courts have noted that twenty to forty 20 hours is the range most often requested and granted in social security cases”); Chavez v. 21 Colvin, No. CV-12-01124-PHX-DGC, 2014 WL 4284791, at *1 (D. Ariz. Aug. 29, 2014) 22 (finding 39 hours billed by plaintiff’s counsel a reasonable number of hours); Stearns v. 23 Colvin, No. 3:14-CV-05611 JRC, 2016 WL 730301, at *5 (W.D. Wash. Feb. 24, 2016) 24 (collecting cases to establish that the typical number of hours reported for counsel in a 25 social security case ranged from 18-40 hours); Guzman v. Comm’r of Soc. Sec., No. 2:20- 26 CV-0468-KJN, 2021 WL 2534462, at *4 (E.D. Cal. June 21, 2021) (finding a total of 38 27 hours for counsel spent prosecuting the Social Security appeal to be reasonable in a case 28 where, as here, the parties agreed to a sentence-four remand). 2 The EAJA provides that the Court may award reasonable attorney fees “based upon 3 prevailing market rates for the kind and quality of the services furnished,” but “attorney 4 fees shall not be awarded in excess of $125 per hour unless the court determines that an 5 increase in the cost of living or a special factor, such as the limited availability of qualified 6 attorneys for the proceedings involved, justifies a higher fee.” 28 U.S.C. § 2412(d)(2)(A). 7 The Ninth Circuit’s hourly EAJA rates for work performed in 2021, factoring in 8 increases in the cost of living, was $217.54. See United States Courts for the Ninth 9 Circuit, Statutory Maximum Rates Under the Equal Access to Justice Act, 10 https://www.ca9.uscourts.gov/attorneys/statutory-maximum-rates/ (last visited Feb. 22, 11 2022); see also Thangaraja v. Gonzales, 428 F.3d 870, 876 (9th Cir. 2005) (“EAJA 12 provides for an upward adjustment of the $125 rate contained in the statute, based on cost- 13 of-living increases”) (citing 28 U.S.C. § 2412(d)(2)(A)); see, e.g., Black, 2019 WL 14 2436393, at *1 (considering the Ninth Circuit’s hourly EAJA rate a reasonable rate). Here, 15 although the total amount of attorney fees would ordinarily total $11,477.50 given 16 Plaintiff’s counsel’s typical billing rates, and applying the 2021 EAJA rate of $217.54 to 17 the 39.5 hours of work done in 20213 would total $8,592.83, the parties request a total 18 discounted amount of $7,500. See ECF Nos. 22, 22-1. As such, the Court finds that the 19 hourly rate billed by counsel is reasonable. 20 E. Assignment of Rights to Counsel 21 The parties jointly request that “[f]ees shall be made payable to Plaintiff, but if the 22 Department of the Treasury determines that Plaintiff does not owe a federal debt, then the 23 government shall cause the payment of fees, expenses and costs to be made directly to 24 counsel, pursuant to the assignment executed by Plaintiff.” ECF No. 20 at 2; see also ECF 25 No. 22-2 (agreement signed by Plaintiff stating “I hereby assign my rights in any fees 26 27 28 2 LLC]”). 3 The Supreme Court has held that “a § 2412(d) fees award is payable to the litigant 4 and is therefore subject to a Government offset to satisfy a pre-existing debt that the litigant 5 owes the United States.” Astrue v. Ratliff, 560 U.S. 586, 588–89 (2010). Nonetheless, 6 “district courts have recognized that Ratliff does not prevent payment of a fee award 7 directly to the attorney where there has been a valid assignment and the plaintiff does not 8 owe a debt to the government.” Ulugalu, 2018 WL 2012330, at *4–*5 (reviewing 9 Plaintiff’s assignment agreement and ordering that the EAJA fees be paid to plaintiff’s 10 counsel, subject to any administrative offset due to outstanding federal debt); Bell v. 11 Berryhill, No. 16cv809-MMC, 2018 WL 452110, at *5 (N.D. Cal. Jan. 17, 2018) (same); 12 Blackwell v. Astrue, No. CIV-08-1454-EFB, 2011 WL 1077765, at *4–*5 (E.D. Cal. Mar. 13 21, 2011) (same); Castaneda v. Astrue, No. EDCV-09-1850-OP, 2010 U.S. Dist. LEXIS 14 72887, at *6–*8 (C.D. Cal. Jul. 20, 2010) (same); see also Calderon v. Astrue, No. 15 08cv1015-GSA, 2010 WL 4295583, at *8 (E.D. Cal. Oct. 21, 2010) (“Plaintiff, as the 16 prevailing litigant, would normally be awarded the fees described above, subject to any 17 offset for applicable government debts. Defendant, however, seems to be content to permit 18 payment to Plaintiff’s counsel if Plaintiff does not have any qualifying government debt 19 . . . . This Court finds the government’s position to be reasonable and will therefore permit 20 payment to Plaintiff’s counsel provided Plaintiff has no government debt that requires 21 offset”). 22 Here, Plaintiff assigned her right to EAJA fees to her attorney. ECF No. 22-2. 23 Accordingly, if Plaintiff has no federal debt that is subject to offset, the award of fees may 24 be paid directly to her counsel at Osterhout Berger Disability Law, LLC, pursuant to the 25 assignment agreement. 26 \\ 27 \\ 28 \\ 1 |}IV. CONCLUSION 2 Based on the foregoing, the Court hereby ORDERS that: 3 1. The parties’ Amended Joint Motion for the Award of Attorney Fees Under 4 ||the Equal Access to Justice Act (ECF No. 22) is GRANTED; 5 2. Plaintiff is awarded attorney fees under the EAJA in the amount of $7,500.00; 6 || and 7 3. Pursuant to Astrue v. Ratliff, 560 U.S. 586, 588-89 (2010), any payment shall 8 ||be made payable to Plaintiff and delivered to Plaintiff's counsel, unless Plaintiff does not 9 || owe a federal debt. If the United States Department of the Treasury determines that Plaintiff 10 not owe a federal debt, the government shall accept Plaintiff's assignment of EAJA 11 || fees and pay fees directly to Plaintiff’s counsel. See ECF No. 20 at 2; see, e.g., Mendoza v. 12 || Saul, No. 18cv925-SKO, 2020 WL 406773, at *5 (E.D. Cal. Jan 24, 2020). 13 IT IS SO ORDERED. 14 15 || Dated: February 23, 2022 6 _ DpwioenH. Xian Honorable Allison H. Goddard 17 United States Magistrate Judge 18 19 20 21 22 23 24 25 26 27 28