Vieira v. Commissioner of Social Security

Filing 31

ORDER signed by Magistrate Judge Deborah Barnes on 11/15/2020 GRANTING 25 plaintiff's Motion for Attorney Fees. Plaintiff is AWARDED $12,621.64 in attorney fees and cost under 28 U.S.C. § 2412(d). (Kastilahn, A)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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FRANKIE REIS VIEIRA,

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Plaintiff,

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v.

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No. 2:18-cv-0955 DB

ORDER

ANDREW SAUL, Commissioner of Social
Security,

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Defendant.

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This matter is before the court on plaintiff’s motion for attorney’s fees pursuant to the

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Equal Access to Justice Act (“EAJA”). 1 (ECF No. 25.) Plaintiff brought this action seeking

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judicial review of a final administrative decision denying plaintiff’s application for Disability

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Insurance Benefits under Title II of the Social Security Act. On March 25, 2020, the court issued

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an order granting plaintiff’s motion for summary judgment, denying defendant’s cross-motion for

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summary judgment, and remanding this matter for the immediate award of benefits. (ECF No.

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23.) On May 31, 2020, plaintiff filed a motion for attorney’s fees. (ECF No. 25.) Defendant

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filed an opposition on September 22, 2020. (ECF No. 29.) Plaintiff filed a reply on November

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10, 2020. (ECF No. 30.)

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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. 8 & 9.)
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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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ANALYSIS
Here, the court finds that plaintiff is the prevailing party, that plaintiff did not unduly

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delay this litigation, and that plaintiff’s net worth did not exceed two million dollars when this

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action was filed. (ECF No. 2.) With respect to substantial justification, “[s]ubstantial

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justification means ‘justified in substance or in the main—that is, justified to a degree that could

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satisfy a reasonable person.’” Tobeler v. Colvin, 749 F.3d 830, 832 (9th Cir. 2014) (quoting
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Meier v. Colvin, 727 F.3d 867, 870 (9th Cir. 2013)). “Put differently, the government’s position

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must have a ‘reasonable basis both in law and fact.’” Meier, 727 F.3d at 870 (quoting Pierce v.

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Underwood, 487 U.S. 552, 565 (1988)). “‘[T]he position of the United States includes both the

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government’s litigation position and the underlying agency action.’” Campbell v. Astrue, 736

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F.3d 867, 868 (9th Cir. 2013) (quoting Meier, 727 F.3d at 870); see also Shafer v. Astrue, 518

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F.3d 1067, 1071 (9th Cir. 2008) (“the relevant question is whether the government’s decision to

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defend on appeal the procedural errors committed by the ALJ was substantially justified”). “In

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determining whether a party is eligible for fees under EAJA, the district court must determine

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whether the government’s position regarding the specific issue on which the district court based

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its remand was ‘substantially justified’—not whether the ALJ would ultimately deny disability

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benefits.” Gardner v. Berryhill, 856 F.3d 652, 656 (9th Cir. 2017).
As noted above, “[i]t is the government’s burden to show that its position was

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substantially justified.” Meier, 727 F.3d at 870. Here, in light of the errors identified in the May

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31, 2020 order, the court cannot find that the government’s position was substantially justified.
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, 154 F.3d at 987. Determining a reasonable fee “‘requires more inquiry by a

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district court than finding the product of reasonable hours times a reasonable rate.’” Atkins, 154

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F.3d at 988 (quoting Hensley v. Eckerhart, 461 U.S. 424, 434 (1983) (internal citations omitted)).

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The district court must consider “‘the relationship between the amount of the fee awarded and the

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results obtained.’” Id. at 989 (quoting Hensley, 461 U.S. at 437).

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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 the statutory maximum rates established by the Ninth Circuit. (ECF
No. 25-2.)
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Here, as modified by plaintiff’s reply, plaintiff’s fee motion seeks compensation for 72.2

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hours of attorney and paralegal time, for a total award of $13,374.64. (Pl.’s Reply (ECF No. 30)

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at 28.) Defendant argues that the hours expended were the result of plaintiff’s counsel’s “practice

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of rolling off long, rambling diatribes, running up the EAJA fees, and billing excessive,

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duplicative, unnecessary fees that are not reasonable.”3 (Def.’s Opp.’n (ECF No. 29) at 3.)

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Defendant attempts to support this argument by citing to “several items” of compensation “that

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are not reasonable.”4 (Id.)

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However, as noted by plaintiff, the examples cited by defendant include instances which

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were designated “No Charge,” and for which plaintiff is not seeking compensation. (Pl.’s Reply

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(ECF No. 30) at 7; ECF No. 25-2 at 1.) In this regard, including the briefings on cross-motions

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for summary judgment and the pending attorney’s fee motion, while plaintiff’s counsel expended

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85.7 hours on this action, plaintiff’s counsel is only seeking compensation for 72.2 hours. (Pl.’s

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Reply (ECF No. 30) at 5, 7.) Ultimately, the court finds the hours expended, although at the high

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end of the spectrum, to be reasonable when compared to the time devoted to similar tasks by

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counsel in like social security appeals coming before this court. See Clark v. Colvin, No. 2:14-

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CV-0851 DB, 2016 WL 4179803, at *4 (E.D. Cal. Aug. 8, 2016) (finding 67.25 hours to be a

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reasonable amount of time); Boulanger v. Astrue, No. CIV S-07-0849 DAD, 2011 WL 4971890,

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at *2 (E.D. Cal. Oct. 19, 2011) (finding 58 hours to be a reasonable amount of time); Watkins v.

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Astrue, No. CIV S-06-1895 DAD, 2011 WL 4889190, at *2 (E.D. Cal. Oct. 13, 2011) (finding 62

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hours to be a reasonable amount of time); Vallejo v. Astrue, No. 2:09-cv-03088 KJN, 2011 WL

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4383636, at *5 (E.D. Cal. Sept. 20, 2011) (finding 62.1 hours to be a reasonable amount of time);

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see also Costa v. Commissioner of Social Sec. Admin., 690 F.3d 1132, 1137 (9th Cir. 2012)

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(“District courts may not apply de facto caps limiting the number of hours attorneys can

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This description is not consistent with cases that have come before the undersigned involving
plaintiff’s counsel.
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Oddly, defendant also attempts to support this argument by citation to, among others, a case in
which defendant presented a similar argument where the court was “not persuaded by the
Commissioner’s arguments[.]” Silas-Foreman v. Commissioner of Social Security, No. 2:18-cv1573 AC, 2019 WL 6170746, at *2 (E.D. Cal. Nov. 11, 2019).
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reasonably expend on ‘routine’ social security cases.”). See generally Moreno v. City of

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Sacramento, 534 F.3d 1106, 1112 (9th Cir. 2008) (“By and large, the court should defer to the

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winning lawyer’s professional judgment as to how much time he was required to spend on the

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case; after all, he won, and might not have, had he been more of a slacker.”).

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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., Commissioner,

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I.N.S. v. Jean, 496 U.S. 154, 161-62 (1990) (“the EAJA—like other fee-shifting statutes—favors

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treating a case as an inclusive whole, rather than as atomized line-items”); Stewart v. Sullivan,

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810 F. Supp. 1102, 1107 (D. Haw. 1993); Duran v. Colvin, No. 2:11-cv-2978 DAD, 2013 WL

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5673415, at *2 (E.D. Cal. Oct. 17, 2013).
Plaintiff’s counsel, however, seeks compensation for 25.1 hours of paralegal time

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expended on this action at a rate of $130 per hour. (Pl.’s Reply (ECF No. 30) at 5.)

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“[A] prevailing party that satisfies EAJA’s other requirements may recover its paralegal fees from

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the Government at prevailing market rates.” Richlin Sec. Service Co. v. Chertoff, 553 U.S. 571,

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590 (2008). “The court finds that the prevailing market rate for work performed by paralegals in

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this district is $100 per hour.” Lara v. Berryhill, No. 2:16-cv-0034 DB, 2017 WL 4679989, at *3

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(E.D. Cal. Oct. 18, 2017); see also Dittmar v. Berryhill, No. 2:15-cv-1630 DB, 2017 WL

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4277590, at *3 (E.D. Cal. Sept. 27, 2017) (same); Pointer v. Bank of America, N.A., No. 2:14-cv-

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0525 KJM CKD, 2016 WL 7404759, at *17 (E.D. Cal. Dec. 21, 2016) (finding reasonable rate of

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$75 per hour for paralegals); McCarty v. Humphrey, No. 2:13-cv-0431 KJM AC, 2016 WL

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4899194, at *5 (E.D. Cal. Sept. 15, 2016) (awarding paralegal rates of $85 and $100 per hour);

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Joe Hand Promotions, Inc. v. Albright, No. CIV. 2:11-2260 WBS CMK, 2013 WL 4094403, at

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*3 (E.D. Cal. Aug. 13, 2013) (“According to the court’s own research, the paralegal rate favored

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in this district is $75 per hour.”).

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Accordingly, plaintiff’s fee award will be reduced by $753 (25.1 hours x $30). Plaintiff’s

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counsel also requests that the attorney’s fee award be paid to plaintiff’s counsel. (Pl.’s Mot. (ECF

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No. 25) at 16.) However, 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). The Court will incorporate

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such a provision in this order.

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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 fees under the Equal Access to Justice Act (ECF No. 25)

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is granted;

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2. Plaintiff is awarded $12,621.64 in attorney fees and cost under 28 U.S.C. § 2412(d);
and

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3. Defendant shall determine whether plaintiff’s EAJA attorney’s fees are subject to any

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

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fees are not subject to an offset, shall honor plaintiff’s assignment of EAJA fees and shall cause

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the payment of fees to be made directly to plaintiff’s counsel pursuant to the assignment executed

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by plaintiff.

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Dated: November 15, 2020

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DLB:6
DB\orders\orders.soc sec\vieira0955.eaja.ord

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