Perry v. Commissioner

Filing 34

ORDER signed by Magistrate Judge Allison Claire on 01/12/18 32 GRANTING plaintiff's Motion for Attorney Fees in the amount of $5,529.91. (Benson, A.)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ROWLAND GENE PERRY,

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Plaintiff,

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No. 2:16-cv-01116-AC

v.

ORDER

NANCY A. BERRYHILL, Acting
Commissioner Of Social Security,
Defendant.

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Plaintiff Rowland Gene Perry commenced this social security action on May 23, 2016.

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ECF Nos. 1-2.1 On July 25, 2017, the court granted plaintiff’s motion for summary judgment,

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denied the Commissioner’s cross-motion for summary judgment, remanded the case for an

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immediate award of benefits, and entered judgment for plaintiff. ECF Nos. 30, 31. Presently

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pending before the court is plaintiff’s motion for attorneys’ fees pursuant to the Equal Access to

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Justice Act (“EAJA”). ECF No. 32. The court gave the commissioner a period of time to oppose

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the motion if it wished to do so, and the commissioner did not oppose the motion. ECF No. 33.

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This case was referred to the undersigned pursuant to E.D. Cal. L.R. 302(c)(15) and both
parties voluntarily consented to proceed before a United States Magistrate Judge pursuant to 28
U.S.C. § 636(c). ECF Nos. 6, 11.
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After considering plaintiff’s briefing and the applicable law, the court grants plaintiff’s motion for

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EAJA fees.

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The EAJA provides, in part, that:

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Except as otherwise specifically provided by statute, a court shall
award to a prevailing party other than the United States fees and
other expenses, in addition to any costs awarded pursuant to
subsection (a), incurred by that party in any civil action (other than
cases sounding in tort), including proceedings for judicial review of
agency action, brought by or against the United States in any court
having jurisdiction of that action, unless the court finds that the
position of the United States was substantially justified or that
special circumstances make an award unjust.

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A party seeking an award of fees and other expenses shall, within
thirty days of final judgment in the action, submit to the court an
application for fees and other expenses which shows that the party
is a prevailing party and is eligible to receive an award under this
subsection, and the amount sought, including an itemized statement
from any attorney or expert witness representing or appearing in
behalf of the party stating the actual time expended and the rate at
which fees and other expenses were computed. The party shall also
allege that the position of the United States was not substantially
justified. Whether or not the position of the United States was
substantially justified shall be determined on the basis of the record
(including the record with respect to the action or failure to act by
the agency upon which the civil action is based) which is made in
the civil action for which fees and other expenses are sought.

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The court, in its discretion may reduce the amount to be awarded
pursuant to this subsection, or deny an award, to the extent that the
prevailing party during the course of the proceedings engaged in
conduct which unduly and unreasonably protracted the final
resolution of the matter in controversy.

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28 U.S.C. § 2412(d)(1)(A)-(C).

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Here, the Commissioner does not dispute that plaintiff is a prevailing party, because he

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successfully obtained a remand for further proceedings under sentence four of 42 U.S.C. §

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405(g). Shalala v. Schaefer, 509 U.S. 292, 300-02 (1993). Furthermore, plaintiff’s application

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for EAJA fees is timely, because it was filed within thirty days of final judgment in this action.2

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The term “final judgment” for purposes of the EAJA “means a judgment that is final and not
appealable....” 28 U.S.C. § 2412(d)(2)(G). The court entered judgment for plaintiff on July 25,
2017. ECF No. 31. The judgment became a non-appealable “final judgment” 60 days later on
September 23, 2017. See Fed. R. App. P. 4(a)(1)(B) (providing that the notice of appeal may be
filed by any party within 60 days after entry of the judgment if one of the parties is the United
(continued…)
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The commissioner does not argue that its position was substantially justified.

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Therefore, having concluded that the Commissioner’s position was not substantially

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justified, and that there are no other special circumstances that would make an award of EAJA

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fees unjust, the court finds that plaintiff is entitled to an award of fees pursuant to the EAJA.

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The EAJA directs the court to award a reasonable fee. 28 U.S.C. § 2412(d)(2)(A). In

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determining whether a fee is reasonable, the court considers the reasonable hourly rate, the hours

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expended, and the results obtained. See Commissioner, INS v. Jean, 496 U.S. 154, 163 (1990);

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Hensley v. Eckerhart, 461 U.S. 424, 437 (1983); Atkins v. Apfel, 154 F.3d 986, 988 (9th Cir.

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1998).

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In considering a reasonable rate for attorneys’ fees, an increase in the statutory rate of

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$125 may be justified to account for increases in the cost of living. See Sorenson v. Mink, 239

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F.3d 1140, 1148 (9th Cir. 2001). The cost of living adjustment to the statutory cap is computed

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by multiplying the statutory cap by the consumer price index for urban consumers for the year in

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which the fees were earned, then dividing by the consumer price index figure on the date that the

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cap was imposed by Congress. Id. at 1148-49; see also Thangaraja v. Gonzales, 428 F.3d 870,

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876-77 (9th Cir. 2005).3 The national, rather than local, change in cost of living should be

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applied to adjust the EAJA rate cap because “if Congress had wanted to allow for cost of living

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adjustments in a particular region or city, it could have done so in the statute.” Stewart v.

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Sullivan, 810 F. Supp. 1102, 1107 (D. Haw. 1993).

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The Commissioner does not oppose plaintiff’s requested rate. Plaintiff submitted a

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timesheet, with entries broken down by various tasks performed related to the case, showing that

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States, a United States agency, or a United States officer or employee sued in an official
capacity). Accordingly, plaintiff was required to file an application for EAJA fees no later than
30 days after the “final judgment,” i.e., by October 23, 2017. Plaintiff’s October 22, 2017
application is therefore timely.
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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 rates
are within the statutory maximum rate established by the Ninth Circuit.
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plaintiff’s counsel spent 28.7 hours on this case, at a cost-of-living adjusted rate of $192.68 (2016

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federal EAJA rage), for a total fee request of $5,529.91. ECF No. 32-2 at 2-3. After an

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independent review of the time entries, the court finds the amount of time spent by plaintiff’s

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counsel to be reasonable. In light of the fact that plaintiff obtained a favorable judgment

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remanding the case for further administrative proceedings, the amount of fees sought is consistent

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with the result obtained.

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Therefore, the court will award plaintiff EAJA attorneys’ fees in the full amount of

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$5,529.91. The court notes that plaintiff has executed an assignment of EAJA fees to plaintiff’s

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counsel. (ECF No. 32-1 at 3.) However, the EAJA award must be made by this court to plaintiff,

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and not to counsel. See Astrue v. Ratliffe, 130 S. Ct. 2521 (2010). Nevertheless, if the

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government determines that plaintiff does not owe a federal debt that qualifies for offset, payment

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may be made in the name of plaintiff’s attorney.

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Accordingly, for the reasons outlined above, IT IS HEREBY ORDERED that:

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1. Plaintiff’s motion for attorneys’ fees under the EAJA (ECF No. 32) is GRANTED.

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2. Plaintiff is awarded attorneys’ fees in the total amount of $5,529.91 pursuant to the

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EAJA. If the government determines that plaintiff does not owe a federal debt that

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qualifies for offset, payment may be made in the name of plaintiff’s attorney.

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IT IS SO ORDERED.
DATED: January 12, 2018

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