Summary
applying Auke Bay to conclude a plaintiff's EAJA fee application in a Social Security case was not premature where the court had remanded for payment of benefits, despite the application being filed before the sixty-day appeal period had run
Summary of this case from Victtoria C. v. KijakaziOpinion
3:20-cv-02270-AHG
04-14-2022
SERGIO C., Plaintiff, v. KILOLO KIJAKAZI, Acting Commissioner of Social Security, Defendant.
ORDER GRANTING JOINT MOTION FOR THE AWARD AND PAYMENT OF ATTORNEY FEES AND EXPENSES
[ECF NO. 22]
HONORABLE ALLISON H. GODDARD UNITED STATES MAGISTRATE JUDGE
Before the Court is the parties' Joint Motion for the Award and Payment of Attorney Fees and Expenses Pursuant to the Equal Access to Justice Act. ECF No. 22. For the reasons set forth below, the Court GRANTS the parties' joint motion.
I. BACKGROUND
The underlying action involves Plaintiff's appeal of the Social Security Administration's denial of his application for supplemental security income at the agency level. ECF No. 1. After the Commissioner of Social Security (“Defendant”) filed the administrative record in lieu of an answer, the Court issued a scheduling order. ECF No. 14. Among other requirements in the scheduling order, the Court directed the parties to engage in formal settlement discussions, and set a deadline of December 20, 2021 for the parties either to stipulate to a dismissal or remand of the case, or to file a Joint Status Report notifying the Court that they were unable to resolve the matter in settlement discussions. See Id. at 2. The Court later extended the Joint Status Repot deadline to January 3, 2022. ECF No. 17.
Although the parties were unable to resolve the matter through settlement discussions prior to the Joint Status Report deadline, see ECF No. 18, a few weeks later on February 17, 2022, the parties filed a joint motion for voluntary remand pursuant to sentence four of 42 U.S.C. § 405(g). ECF No. 19. The following day, the Court granted the joint motion, remanded the case to the Commissioner of Social Security for further administrative action, and entered a final judgment reversing the final decision of the Commissioner. ECF No. 20. A Clerk's Judgment was entered on February 22, 2022. ECF No. 21.
On April 13, 2022, the parties filed the instant motion. ECF No. 22. The parties jointly request that Plaintiff receive an award of attorney fees and expenses in the amount of $1, 890.00 under the Equal Access to Justice Act, 28 U.S.C. § 2412(d) (“EAJA”). Id. at 1. In support of the request, the parties have submitted a time sheet showing that Plaintiff's counsel Lawrence D. Rohlfing completed 2.7 hours of work at $207.78 per hour (the EAJA rate for 2020) and 3.05 hours of work at $217.54 per hour (the EAJA rate for 2021). Additionally, three paralegals at Mr. Rohlfing's office performed a total of 5.05 hours of work on the case at a billing rate of $143.00, for a total billed fee amount of $1, 946.65, although the total fee request has been discounted to $1, 890.00. See ECF No. 22 at 1; ECF No. 22-2.
The billing statement incorrectly lists the 2020 EAJA billing rate as $207.75 rather than $207.78. However, the total billed fee amount of $1, 946.65 listed on the billing sheet is correctly calculated as the sum of (2.7 x $207.78) + (3.05 x $217.54) + (5.05 x $143.00). See ECF No. 22-2. Thus, the correct EAJA rates were used to calculate the fee total. In any event, the discrepancy is immaterial because the parties have jointly requested a discounted fee total of $1, 890.00.
II. THRESHOLD ISSUE OF TIMELINESS
According to the EAJA, an application for fees must be filed “within thirty days of final judgment.” 28 U.S.C. § 2412(d)(1)(B). A final judgment is “a judgment that is final and not appealable . . . .” 28 U.S.C. § 2412(d)(2)(G). The Ninth Circuit has held that the EAJA's 30-day filing period does not begin to run until after the 60-day appeal period in Federal Rule of Appellate Procedure 4(a). Hoa Hong Van v. Barnhart, 483 F.3d 600, 612 (9th Cir. 2007).
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 the parties is the United States or a United States officer sued in an official capacity. Fed. R. App. P. 4(a)(1)(B).
Here, the parties filed the motion for EAJA fees on April 13, 2022, 50 days after judgment was entered on February 22, 2022. Therefore, at first blush, the motion before the Court may seem premature, since it was filed before the end of the 60-day appeal period. See Auke Bay Concerned Citizen's Advisory Council v. Marsh, 779 F.2d 1391, 1393 (9th Cir. 1986) (“Section 2412(d)(1)(B) establishes a clear date after which applications for attorney fees must be rejected as untimely; 30 days after final judgment. The statute is less clear about a time before which applications must be rejected.”).
However, the Auke Bay court explained that even where the appeal period has not yet run, an application for EAJA attorney fees is nonetheless timely “if (1) the applicant files no more than 30 days after final judgment, and (2) the applicant is able to show that he or she ‘is a prevailing party and is eligible to receive an award under this subsection.'” Id. (emphasis added) (quoting 28 U.S.C. § 2412(d)(1)(B)). Thus, an early application is timely where “a court order substantially grants the applicant's remedy before final judgment is entered” such that the applicant is able to show that she has prevailed. Auke Bay, 779 F.2d at 1393. The Court finds that these criteria are met here, such that the joint motion for EAJA fees is timely. See, e.g., Dickey v. Colvin, No. 14-CV-00629-WHO, 2015 WL 575986, at *3 (N.D. Cal. Feb. 10, 2015) (applying Auke Bay to conclude a plaintiff's EAJA fee motion was not premature in a Social Security case, although the motion was filed before the 60-day appeal period had run, where the court had remanded for payment of benefits rather than further proceedings) (citing Shalala v. Schaefer, 509 U.S. 292, 302 (1993) (“An EAJA application may be filed until 30 days after a judgment becomes ‘not appealable'-i.e., 30 days after the time for appeal has ended.”)). Here, the Court substantially granted Plaintiff's remedy before entry of final judgment, by granting the parties' Joint Motion for Voluntary Remand and reversing the final decision of the Commissioner denying Plaintiff's application for benefits. See ECF Nos. 19, 20. Therefore, the Court finds the joint motion is timely.
III. DISCUSSION
Under the EAJA, a litigant is entitled to attorney fees and costs if: “(1) he is the prevailing party; (2) the government fails to show that its position was substantially justified or that special circumstances make an award unjust; and (3) the requested fees and costs are reasonable.” Carbonell v. I.N.S., 429 F.3d 894, 898 (9th Cir. 2005). The Court will address these elements in turn.
A. Prevailing party
A plaintiff is a prevailing party if she “has ‘succeeded on any significant issue in litigation which achieve[d] some of the benefit . . . sought in bringing suit.'” Ulugalu v. Berryhill, No. 17cv1087-GPC-JLB, 2018 WL 2012330, at *2 (S.D. Cal. Apr. 30, 2018) (quoting Schaefer, 509 U.S. at 302). Here, as discussed above, Plaintiff is the prevailing party because this case was remanded pursuant to sentence four of 42 U.S.C. § 405(g). Akopyan v. Barnhart, 296 F.3d 852, 854 (9th Cir. 2002) (“A plaintiff who obtains a sentence four remand is considered a prevailing party for purposes of attorneys' fees.”); Ulugalu, 2018 WL 2012330, at *2 (in a case where the parties jointly stipulated to remand, “because the Court granted the Commissioner's proposed order for remand and entered judgment in favor of Plaintiff pursuant to sentence-four, Plaintiff is a prevailing party”); see ECF No. 20 (remanding the case pursuant to sentence four of 42 U.S.C. § 405(g)).
B. Substantial justification
The government bears the burden of proving that its position, both in the underlying administrative proceedings and in the subsequent litigation, was substantially justified. Meier v. Colvin, 727 F.3d 867, 870 (9th Cir. 2013). Here, the parties have stipulated to the EAJA amount, and explain that the stipulation “constitutes a compromise settlement of [Plaintiff's] request for EAJA attorney fees[.]” ECF No. 22 at 2. Although Defendant's stipulation does not constitute an admission of liability on its part, the compromise nature of the request is sufficient to find the second element met, given that “Defendant has stipulated to the attorney[] fees and does not argue that the prevailing party's position was 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 2436393, at *1 (S.D. Cal. June 11, 2019) (finding the second element met because, “in light of the joint nature of the parties' request and the court's prior order remanding this action, the government has not shown that its position was substantially justified.”). Furthermore, “[b]ecause the Commissioner filed a voluntary stipulation for remand and the matter was referred to an Administrative Law Judge to make a new determination as to Plaintiff's disability, the Court is persuaded the Commissioner did not have substantial justification for denying Plaintiff disability rights.” Ulugalu, 2018 WL 2012330, at *3.
C. Reasonableness of Hours
The parties seek a fee award for 5.75 hours billed by Plaintiff's counsel and 5.05 hours billed by paralegals at Plaintiff's counsel's firm. ECF No. 22-2. The Court finds the number of hours billed by Plaintiff's counsel to be reasonable. See 28 U.S.C. § 2412(d). Indeed, the total number of hours billed-10.8-is far below the typical range seen in social security appeals. See, e.g., Costa, 690 F.3d at 1136 (noting “[m]any district courts have noted that twenty to forty hours is the range most often requested and granted in social security cases”); Stearns v. Colvin, No. 3:14-CV-05611 JRC, 2016 WL 730301, at *5 (W.D. Wash. Feb. 24, 2016) (collecting cases to establish that the typical number of hours reported for counsel in a social security case ranged from 18-40 hours). Therefore, the Court will not question counsel's judgment that the hours expended by both Mr. Rohlfing and by paralegals Enedina Perez, Sue Roe, and Michelle Cruz were necessary to achieve the favorable result for the client in this case. See Nadarajah v. Holder, 569 F.3d 906, 918 (9th Cir. 2009) (a prevailing party may recover reasonable paralegal fees); see also Costa v. Comm'r of SSA, 690 F.3d 1132, 1136 (9th Cir. 2012) (reiterating the Ninth Circuit's previous position that “courts should generally defer to the ‘winning lawyer's professional judgment as to how much time he was required to spend on the case.'”) (quoting Moreno v. City of Sacramento, 534 F.3d 1106, 1112-13 (9th Cir. 2008)).
D. Reasonableness of Hourly Rate
The EAJA provides that the Court may award reasonable attorney fees “based upon prevailing market rates for the kind and quality of the services furnished, ” but “attorney fees shall not be awarded in excess of $125 per hour unless the court determines that an increase in the cost of living or a special factor, such as the limited availability of qualified attorneys for the proceedings involved, justifies a higher fee.” 28 U.S.C. § 2412(d)(2)(A). As noted, the statutory maximum EAJA rate for work performed in 2020 in the Ninth Circuit, factoring in increases in the cost of living, was $207.78, and the statutory maximum EAJA rate for 2021 was $217.54. See United States Courts for the Ninth Circuit, Statutory Maximum Rates Under the Equal Access to Justice Act, https://www.ca9.uscourts.gov/attorneys/statutory-maximum-rates/ (last visited Apr. 14, 2022); see also Thangaraja v. Gonzales, 428 F.3d 870, 876 (9th Cir. 2005) (“EAJA provides for an upward adjustment of the $125 rate contained in the statute, based on cost-of-living increases”) (citing 28 U.S.C. § 2412(d)(2)(A)); see, e.g., Black, 2019 WL 2436393, at *1 (considering the Ninth Circuit's hourly EAJA rate a reasonable rate). Consistent with the Ninth Circuit's hourly EAJA rates, Plaintiff's counsel billed at a rate of $207.78 per hour for work performed in 2020, and at a rate of $217.54 per hour for work performed in 2021. ECF No. 22-2. As such, the Court finds that the hourly rate billed by counsel is reasonable.
E. Assignment of Rights to Counsel
The parties jointly request that “[f]ees shall be made payable to [Plaintiff], but if the Department of the Treasury determines that [Plaintiff] does not owe a federal debt, then the government shall cause the payment of fees, expenses and costs to be made directly to Law Offices of Lawrence D. Rohlfing, Inc., CPC, pursuant to the assignment executed by [Plaintiff].” ECF No. 22 at 2; see also ECF No. 22-1 ¶ 4 (agreement signed by Plaintiff stating that Plaintiff “shall endorse such documents as are needed to pay Attorney any amounts under the EAJA and assigns such fee awards to Attorney.”).
The Supreme Court has held that “a § 2412(d) fees award is payable to the litigant and is therefore subject to a Government offset to satisfy a pre-existing debt that the litigant owes the United States.” Astrue v. Ratliff, 560 U.S. 586, 588-89 (2010). Nonetheless, “district courts have recognized that Ratliff does not prevent payment of a fee award directly to the attorney where there has been a valid assignment and the plaintiff does not owe a debt to the government.” Ulugalu, 2018 WL 2012330, at *4-*5 (reviewing Plaintiff's assignment agreement and ordering that the EAJA fees be paid to plaintiff's counsel, subject to any administrative offset due to outstanding federal debt); Bell v. Berryhill, No. 16cv809-MMC, 2018 WL 452110, at *5 (N.D. Cal. Jan. 17, 2018) (same); Blackwell v. Astrue, No. CIV-08-1454-EFB, 2011 WL 1077765, at *4-*5 (E.D. Cal. Mar. 21, 2011) (same); see also Calderon v. Astrue, No. 08cv1015-GSA, 2010 WL 4295583, at *8 (E.D. Cal. Oct. 21, 2010) (“Plaintiff, as the prevailing litigant, would normally be awarded the fees described above, subject to any offset for applicable government debts. Defendant, however, seems to be content to permit payment to Plaintiff's counsel if Plaintiff does not have any qualifying government debt . . . . This Court finds the government's position to be reasonable and will therefore permit payment to Plaintiff's counsel provided Plaintiff has no government debt that requires offset”); cf. Hernandez v. Berryhill, No. 15cv1322-DB, 2017 WL 2930802, at *3 (E.D. Cal. July 10, 2017) (declining to order that the EAJA fees be paid to plaintiff's counsel, subject to any administrative offset due to outstanding federal debt, because the parties failed to produce evidence of an assignment agreement).
Here, Plaintiff assigned his right to EAJA fees to his attorney. ECF No. 22-1. Accordingly, if Plaintiff has no federal debt that is subject to offset, the award of fees may be paid directly to Law Offices of Lawrence D. Rohlfing, Inc., CPC pursuant to the assignment agreement.
The assignment agreement defines “Attorney” as “the Law Offices of Lawrence D. Rohlfing.” ECF No. 22-1. Accordingly, the assignment provision stating that Plaintiff “assigns [EAJA] fee awards to Attorney” is consistent with the parties' request that the Court order the payment of EAJA fees directly to the firm, if Plaintiff has no federal debt that is subject to offset.
IV. CONCLUSION
Based on the foregoing, the Court hereby ORDERS that:
1. The parties' Joint Motion for the Award and Payment of Attorney Fees and Expenses Pursuant to the Equal Access to Justice Act (ECF No. 22) is GRANTED;
2. Plaintiff is awarded attorney fees under the EAJA in the amount of $1, 890.00; and
3. Pursuant to Astrue v. Ratliff, 560 U.S. 586, 588-89 (2010), any payment shall be made payable to Plaintiff and delivered to Plaintiffs counsel, unless Plaintiff does not owe a federal debt. If the United States Department of the Treasury determines that Plaintiff does not owe a federal debt, the government shall accept Plaintiffs assignment of EAJA fees and pay fees directly to Law Offices of Lawrence D. Rohlfing, Inc., CPC.
IT IS SO ORDERED.