Nobles v. Commissioner of Social Security

Filing 30

ORDER signed by Magistrate Judge Deborah Barnes on 10/17/17 ORDERING that Plaintiff's MOTION for attorney's fees under the Equal Access to Justice Act 27 is GRANTED. Plaintiff is awarded $7,013.55 in attorney fees under 28 U.S.C. § 2412(d); Defendant is directed to mail the payment to Plaintiff's counsel. (Mena-Sanchez, L)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DERRICK NOBLES,

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Plaintiff,

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No. 2:15-cv-2525 DB

v.

ORDER

NANCY A. BERRYHILL, Acting
Commissioner of Social Security,

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Defendant.

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This matter is before the court on plaintiff’s fully briefed motion for attorney’s fees

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pursuant to the Equal Access to Justice Act (“EAJA”).1
Plaintiff brought this action seeking judicial review of a final administrative decision

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denying plaintiff’s application for Disability Insurance Benefits under Title II of the Social

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Security Act. On March 17, 2017, following the filing of a motion for summary judgment by

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plaintiff and a cross-motion for summary judgment by defendant, the court granted plaintiff’s

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motion, reversed the decision of the Commissioner, and remanded this action for further

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proceedings. (ECF No. 25.)

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Both parties have previously consented to Magistrate Judge jurisdiction in this action pursuant
to 28 U.S.C. § 636(c). (See ECF Nos. 6 & 8.)
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On June 15, 2017, plaintiff filed the pending motion for attorney’s fees. (ECF No. 27.)

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On July 11, 2017, defendant filed an opposition to plaintiff’s motion. (ECF No. 28.) Plaintiff

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filed a reply on July 24, 2017. (ECF No. 29.)

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STANDARDS

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The EAJA provides that “a court shall award to a prevailing party . . . fees and other

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expenses . . . incurred by that party in any civil action . . . brought by or against the United States

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. . . unless the court finds that the position of the United States was substantially justified or that

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special circumstances make an award unjust.” 28 U.S.C. § 2412(d)(1)(A); see also Gisbrecht v.

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Barnhart, 535 U.S. 789, 796 (2002). “It is the government’s burden to show that its position was

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substantially justified or that special circumstances exist to make an award unjust.” Gutierrez v.

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Barnhart, 274 F.3d 1255, 1258 (9th Cir. 2001).

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A “party” under the EAJA is defined as including “an individual whose net worth did not

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exceed $2,000,000 at the time the civil action was filed[.]” 28 U.S.C. § 2412(d)(2)(B)(i). The

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term “fees and other expenses” includes “reasonable attorney fees.” 28 U.S.C. § 2412(d)(2)(A).

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“The statute explicitly permits the court, in its discretion, to reduce the amount awarded to the

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prevailing party to the extent that the party ‘unduly and unreasonably protracted’ the final

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resolution of the case.” Atkins v. Apfel, 154 F.3d 986, 987 (9th Cir. 1998) (citing 28 U.S.C. §§

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2412(d)(1)(C) & 2412(d)(2)(D)).

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A party who obtains a remand in a Social Security case is a prevailing party for purposes

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of the EAJA. Shalala v. Schaefer, 509 U.S. 292, 300-01 (1993) (“No holding of this Court has

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ever denied prevailing-party status . . . to a plaintiff who won a remand order pursuant to sentence

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four of § 405(g) . . . , which terminates the litigation with victory for the plaintiff.”). “An

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applicant for disability benefits becomes a prevailing party for the purposes of the EAJA if the

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denial of her benefits is reversed and remanded regardless of whether disability benefits

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ultimately are awarded.” Gutierrez, 274 F.3d at 1257.

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“Substantial justification means ‘justified in substance or in the main—that is, justified to

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a degree that could satisfy a reasonable person.’” Tobeler v. Colvin, 749 F.3d 830, 832 (9th Cir.

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2014) (quoting Meier v. Colvin, 727 F.3d 867, 870 (9th Cir. 2013)). “Put differently, the
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government’s position must have a ‘reasonable basis both in law and fact.’” Meier, 727 F.3d at

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870 (quoting Pierce v. Underwood, 487 U.S. 552, 565 (1988)). “‘[T]he position of the United

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States includes both the government’s litigation position and the underlying agency action.’”

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Campbell v. Astrue, 736 F.3d 867, 868 (9th Cir. 2013) (quoting Meier, 727 F.3d at 870); see also

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Shafer v. Astrue, 518 F.3d 1067, 1071 (9th Cir. 2008) (“the relevant question is whether the

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government’s decision to defend on appeal the procedural errors committed by the ALJ was

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substantially justified”). “In determining whether a party is eligible for fees under EAJA, the

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district court must determine whether the government’s position regarding the specific issue on

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which the district court based its remand was ‘substantially justified’—not whether the ALJ

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would ultimately deny disability benefits.” Gardner v. Berryhill, 856 F.3d 652, 656 (9th Cir.

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2017).

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ANALYSIS

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Here, the court finds—and defendant does not dispute—that plaintiff is the prevailing

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party, that plaintiff did not unduly delay this litigation, that plaintiff’s net worth did not exceed

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two million dollars when this action was filed, and that the government’s position was not

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substantially justified. (ECF No. 2.) In this regard, “[t]he Commissioner opposes Plaintiff’s

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motion because this Court should award less than the amount requested, because it is

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unreasonable.” (Def.’s Opp.’n (ECF No. 28) at 2.)
Plaintiff’s Fee Request

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A.

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The EAJA expressly provides for an award of “reasonable” attorney fees. 28 U.S.C. §

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2412(d)(2)A). Under the EAJA, hourly rates for attorney fees have been capped at $125.00 since

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1996, but district courts are permitted to adjust the rate to compensate for an increase in the cost

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of living.2 See 28 U.S.C. § 2412(d)(2)(A); Sorenson v. Mink, 239 F.3d 1140, 1147-49 (9th Cir.

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2001); Atkins v. Apfel, 154 F.3d 986, 987 (9th Cir. 1998). Determining a reasonable fee

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In accordance with the decision in Thangaraja v. Gonzales, 428 F.3d 870, 876-77 (9th Cir.
2005), and Ninth Circuit Rule 39-1.6, the Ninth Circuit Court of Appeals maintains a list of the
statutory maximum hourly rates authorized by the EAJA, as adjusted annually. The rates may be
found on the Court’s website. See http://www.ca9.uscourts.gov. Here, plaintiff’s requested
attorney rates are equal to, or lower than, the statutory maximum rates established by the Ninth
Circuit.
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“‘requires more inquiry by a district court than finding the product of reasonable hours times a

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reasonable rate.’” Atkins, 154 F.3d at 988 (quoting Hensley v. Eckerhart, 461 U.S. 424, 434

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(1983) (internal citations omitted)). The district court must consider “‘the relationship between

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the amount of the fee awarded and the results obtained.’” Id. at 989 (quoting Hensley, 461 U.S.

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at 437).

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Here, after drafting a thorough motion for summary judgment, and opposition to

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defendant’s motion for summary judgment, plaintiff successfully obtained a remand for further

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proceedings. Including the time spent drafting plaintiff’s EAJA motion, plaintiff’s counsel

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expended 36.4 hours of attorney time on this matter.3 (Pl.’s Mot. (ECF No. 27) at 3.) Having

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considered the relationship between the amount of fees sought and the results obtained the court

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finds defendant’s argument unpersuasive.
In this regard, the amount of hours expended by plaintiff’s counsel, especially when

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compared to the time devoted to similar tasks by counsel in like social security appeals coming

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before this court, was reasonable. See Stamper v. Colvin, No. 2:12-cv-0192 AC, 2013 WL

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6839691, at *2 (E.D. Cal. Dec. 23, 2013) (finding 51 hours to be a reasonable amount of time);

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Boulanger v. Astrue, No. CIV S-07-0849 DAD, 2011 WL 4971890, at *2 (E.D. Cal. Oct. 19,

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2011) (finding 58 hours to be a reasonable amount of time); Watkins v. Astrue, No. CIV S-06-

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1895 DAD, 2011 WL 4889190, at *2 (E.D. Cal. Oct. 13, 2011) (finding 62 hours to be a

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reasonable amount of time); Vallejo v. Astrue, No. 2:09-cv-03088 KJN, 2011 WL 4383636, at *5

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(E.D. Cal. Sept. 20, 2011) (finding 62.1 hours to be a reasonable amount of time); see also Costa

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v. Commissioner of Social Sec. Admin., 690 F.3d 1132, 1137 (9th Cir. 2012) (“District courts

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may not apply de facto caps limiting the number of hours attorneys can reasonably expend on

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‘routine’ social security cases.”). See generally Moreno v. City of Sacramento, 534 F.3d 1106,

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1112 (9th Cir. 2008) (“By and large, the court should defer to the winning lawyer’s professional

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judgment as to how much time he was required to spend on the case; after all, he won, and might

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not have, had he been more of a slacker.”).

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Plaintiff has excluded from this request 1.6 hours of time that were arguably clerical in nature.
(Pl.’s Mot. (ECF No. 27) at 3.)
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Accordingly, after carefully reviewing the record and the pending motion, the court

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declines to conduct a line-by-line analysis of counsel’s billing entries. See, e.g., Stewart v.

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Sullivan, 810 F. Supp. 1102, 1107 (D. Haw. 1993); Knowles v. Colvin, Case No. 1:14-cv-1657-

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SKO, 2016 WL 3407594, at *3 (E.D. Cal. June 20, 2016); Duran v. Colvin, No. 2:11-cv-2978

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DAD, 2013 WL 5673415, at *2 (E.D. Cal. Oct. 17, 2013); Vallejo v. Astrue, No. 2:09-cv-03088

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KJN, 2011 WL 4383636, at *4 (E.D. Cal. Sept. 20, 2011); Destefano v. Astrue, No. 05-CV-3534,

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2008 WL 623197, *4 (E.D. N.Y. Mar. 4, 2008).

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B.

Assignment of Fee Award

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Defendant asks that “if EAJA fees are awarded, the Court specify that the assignment

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cannot by honored without prior consideration by the Treasury Offset Program.” (Def.’s Opp.’n

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(ECF No. 28) at 7.) An attorney fee award under the EAJA is payable to the litigant and is

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therefore subject to a government offset to satisfy any pre-existing debt owed to the United States

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by the claimant. Astrue v. Ratliff, 560 U.S. 586, 592-93 (2010).

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Subsequent to the decision in Ratliff, some courts have ordered payment of the award of

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EAJA fees directly to plaintiff’s counsel pursuant to plaintiff’s assignment of EAJA fees,

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provided that the plaintiff has no debt that requires offset. See Blackwell v. Astrue, No. CIV 08-

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1454 EFB, 2011 WL 1077765, at *5 (E.D. Cal. Mar. 21, 2011); Dorrell v. Astrue, No. CIV 09-

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0112 EFB, 2011 WL 976484, at *2-3 (E.D. Cal. Mar. 17, 2011); Calderon v. Astrue, No. 1:08-cv-

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01015 GSA, 2010 WL 4295583, at *8 (E.D. Cal. Oct. 22, 2010); Castaneda v. Astrue, No. EDCV

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09-1850-OP, 2010 WL 2850778, at *3 (C.D. Cal. July 20, 2010). Similarly, in recently submitted

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stipulations and proposed orders for the award of attorney fees under the EAJA, the parties have

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stipulated that, if plaintiff does not owe a federal debt, the government will consider the plaintiff’s

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assignment of EAJA fees and expenses to plaintiff’s attorney and shall honor the assignment by

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making the fees and expenses payable directly to counsel.

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Defendant also asks that plaintiff’s payment of attorney’s fees be “based on the

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government’s discretionary waiver of the requirements of the Anti-Assignment Act, 31 U.S.C. §

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3727.” (Def.’s Opp.’n (ECF No. 28) at 6.) Under the Anti-Assignment Act, a claim against “the

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United States may not be assigned to a third party unless [certain] technical requirements are
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met.” United States v. Kim, 806 F.3d 1161, 1169 (9th Cir. 2015); 31 U.S.C. § 3727. “[I]n

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modern practice, the obsolete language of the Anti-Assignment Act means that the Government

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has the power to pick and choose which assignments it will accept and which it will not.” Kim,

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806 F.3d at 1169-70. The Anti-Assignment Act “applies to an assignment of EAJA fees in a

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Social Security Appeal for disability benefits.” Yesipovich v. Colvin, 166 F.Supp.3d 1000, 1011

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(N.D. Cal. 2015).
Here, the EAJA fees will be made payable “directly to plaintiff’s counsel, subject to any

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government debt offset and subject to the government’s waiver of the requirements under the

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Anti-Assignment Act.” Id. at 1011; see also Beal v. Colvin, Case No. 14-cv-4437 YGR, 2016

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WL 4761090, at *4 (N.D. Cal. Sept. 13, 2016) (“Here, there is no information on whether

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plaintiff owes any debt to the government. Therefore, the EAJA fee shall be paid directly to

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plaintiff’s counsel, subject to any administrative offset due to outstanding federal debt and subject

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to the government’s waiver of the requirements under the Anti-Assignment Act.”). Moreover,

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“regardless of the payee, the check [should] be mailed to Plaintiff’s attorney.” Hill v.

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Commissioner of Social Security, Case No. 1:14-cv-1813 SAB, 2016 WL 5341274, at *4 (E.D.

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Cal. Sept. 23, 2016).

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CONCLUSION

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s motion for attorney’s fees under the Equal Access to Justice Act (ECF No.

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2. Plaintiff is awarded $7,013.55 in attorney fees under 28 U.S.C. § 2412(d);

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3. Defendant is directed to determine whether plaintiff’s EAJA attorney’s fees are subject

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to any offset permitted under the United States Department of the Treasury’s Offset Program and,

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if the fees are not subject to an offset, shall cause payment of fees to be made directly to plaintiff

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unless the Government decides to accept the assignment of fees; and

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4. Defendant is directed to mail the payment to plaintiff’s counsel.
Dated: October 17, 2017

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DLB:6
DB\orders\orders.soc sec\nobles2525.eaja.ord

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