(SS) Kontokanis v. Commissioner of Social Security

Filing 24

ORDER signed by Magistrate Judge Dennis M. Cota on 2/2/2024 GRANTING 21 Motion for Attorney Fees. Plaintiff is AWAREDED $10,583.28 in fees, payable to Plaintiff's counsel subject to any offset of debts. (Mena-Sanchez, L)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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KATINA KONTOKANIS,

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Plaintiff,

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v.

No. 2:22-CV-1337-DMC

ORDER

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

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Plaintiff, who is proceeding with retained counsel, brought this action for judicial

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review of a final decision of the Commissioner of Social Security under 42 U.S.C. § 405(g).

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Final judgment has been entered. Pending before the Court is Plaintiff’s counsel’s motion for an

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award of attorney’s fees under the Equal Access to Justice Act (EAJA) in the amount of

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$10,583.28. See ECF No. 21. The motion is not opposed.

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I. STANDARDS FOR EAJA MOTION
Because this Court issued a remand pursuant to sentence four of 42 U.S.C.

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§ 405(g), plaintiff is a prevailing party for EAJA purposes. See Flores v. Shalala, 42 F.3d 562

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(9th Cir. 1995). Under the EAJA, an award of reasonable attorney’s fees is appropriate unless the

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Commissioner’s position was “substantially justified” on law and fact with respect to the issue(s)

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on which the court based its remand. 28 U.S.C. § 2412(d)(1)(A); see Flores, 42 F.3d at

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569. No presumption arises that the Commissioner’s position was not substantially justified

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simply because the Commissioner did not prevail. See Kali v. Bowen, 854 F.2d 329 (9th Cir.

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1988). The Commissioner’s position is substantially justified if there is a genuine dispute. See

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Pierce v. Underwood, 487 U.S. 552 (1988). The burden of establishing substantial justification is

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on the government. See Gutierrez v. Barnhart, 274 F.3d 1255, 1258 (9th Cir. 2001).

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In determining substantial justification, the Court reviews both the underlying

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governmental action being defended in the litigation and the positions taken by the government

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in the litigation itself. See Barry v. Bowen, 825 F.2d 1324, 1331 (9th Cir. 1987), disapproved on

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other grounds, In re Slimick, 928 F.2d 304 (9th Cir. 1990). For the government’s position to be

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considered substantially justified, however, it must establish substantial justification for both the

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position it took at the agency level as well as the position it took in the district court. See Kali v.

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Bowen, 854 F.2d 329, 332 (9th Cir. 1998). Where, however, the underlying government action

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was not substantially justified, it is unnecessary to determine whether the government’s litigation

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position was substantially justified. See Andrew v. Bowen, 837 F.2d 875, 880 (9th Cir. 1988).

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“The nature and scope of the ALJ’s legal errors are material in determining whether the

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Commissioner’s decision to defend them was substantially justified.” Sampson v. Chater, 103

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F.3d 918, 922 (9th Cir. 1996) (citing Flores, 49 F.3d at 570). If there is no reasonable basis in law

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and fact for the government’s position with respect to the issues on which the court based its

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determination, the government’s position is not “substantially justified” and an award of EAJA

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fees is warranted. See Flores, 42 F.3d at 569-71. A strong indication the government’s position

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was not substantially justified is a court’s “holding that the agency’s decision . . . was

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unsupported by substantial evidence. . . .” Meier v. Colvin, 727 F.3d 867, 870 (9th Cir. 2013).
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Under the EAJA, the Court may award “reasonable attorney’s fees,” which are set

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at the market rate. See 28 U.S.C. § 2412(d)(2)(A). The party seeking an award under the EAJA

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bears the burden of establishing the fees requested are reasonable. See Hensley v. Eckerhart, 461

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U.S. 424, 434 (1983); Atkins v. Apfel, 154 F.3d 988 (9th Cir. 1998); see also 28 U.S.C. §

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2412(d)(1)(B) (“A party seeking an award of fees and other expenses shall . . . submit to the court

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an application for fees and other expenses which shows . . . the amount sought, including an

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itemized statement from any attorney . . . stating the actual time expended”). The Court has an

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independent duty to review the evidence and determine the reasonableness of the fees requested.

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See Hensley, 461 U.S. at 433, 436-47. The “court can impose a reduction of up to 10 percent – a

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‘haircut’ – based purely on the exercise of its discretion and without more specific explanation.”

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Costa v. Comm’r of Soc. Sec. Admin., 690 F.3d 1132, 1136 (9th Cir. 2012) (per curiam) (quoting

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Moreno v. City of Sacramento, 534 F.3d 1106, 1111 (9th Cir. 2008)). A reduction of more than

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10% requires specific findings regarding the unreasonableness of the amount reduced. See id.

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Finally, in most cases fees awarded under the EAJA are payable directly to the

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client, not counsel. See Astrue v. Ratliff, 130 S.Ct. 2521 (2010).

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II. DISCUSSION

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In this case, Plaintiff’s counsel’s motion has not been opposed by the

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Commissioner. Therefore, the Commissioner has not met his burden of showing that the

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government’s position in this case was substantially justified. The Court thus finds that the

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government’s position was not substantially justified and will focus the remainder of this order on

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the reasonableness of the fees requested.

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Plaintiff’s counsel’s timesheet has been submitted and shows a total of 44.34 hours

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billed at rates of $234.95 per hour for work performed in 2022 and $242.78 per hour for work

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performed in 2023. See ECF No. 22-2. The Court finds the hourly rates to be reasonable and

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consistent with Ninth Circuit guidelines. See Ninth Circuit Rule 39-1.6; see also 28 U.S.C.

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§ 2412(d)(2)(A) (setting hourly rate indexed to inflation), Thangaraja v. Gonzales, 428 F.3d 870,

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876-77 (9th Cir. 2005).
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For review of the administrative record in this case, counsel’s timesheet reflects

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that counsel spent a total of 17.8 hours to complete this task. See ECF No. 22-2. The record in

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this case is 1,383 pages. See ECF No. 9. As a good clip of 1 page per minute, review of this

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record would take approximately 23 hours. Counsel accomplished the task in less time and the

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Court finds the time billed for record review to be reasonable.

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Although this case was resolved by way of a stipulated voluntary remand, the

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remand was not filed until after Plaintiff’s counsel had filed the opening merits brief. The

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opening brief was filed on May 1, 2023, see ECF No. 17, and the stipulated voluntary remans was

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filed on June 1, 2023, see ECF No. 18. Thus, the Court does not find that time claimed in

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association with preparation of the opening brief was rendered unreasonable simply because the

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case was voluntarily remanded. The opening brief itself is 17 pages long and raises three issues

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concerning the evaluation of medical opinions. See ECF No. 17. Plaintiff’s counsel’s timesheet

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reflects that he spent a total of 20.2 hours completing Plaintiff’s opening brief. See ECF No. 22-

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2. Given the size of the record involved and the claims raised, the Court does not find this

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amount of time to be unreasonable.

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Finally, the Court has reviewed Plaintiff’s counsel’s timesheet in detail and finds

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no inappropriate billing methods, such as block billing, or inappropriate charges, such as charges

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for clerical work.

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III. CONCLUSION
Plaintiff’s counsel has requested that any EAJA award be paid direct to him and

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not to Plaintiff. Counsel is not normally entitled to direct receipt of fees under the EAJA, so that

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the government may offset the payment with the plaintiff’s debt. See Astrue v. Ratliff, 560 U.S.

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586, 598 (2010). Since the decision in Ratliff, many courts in this district have authorized

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payment of fees under the EAJA directly to the plaintiff’s counsel. See e.g., Nobles v. Berryhill,

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2017 U.S. Dist. LEXIS 172075 (E.D. Cal. 2017), Alvarado v. Comm’r of Soc. Sec., 2018 U.S.

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Dist. LEXIS 118354 (E.D. Cal. 2018), Blackwell v. Astrue, 2011 U.S. 35744 (E.D. Cal 2011).

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These payments directly to counsel are based upon the government’s discretionary ability to
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reject assignment of any claims against it to third parties under the Anti-Assignment Act. See

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United States v. Kim, 806 F.3d 1161, 1169-70 (9th Cir. 2015). This discretionary ability to reject

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assignment of claims “applies to an assignment of EAJA fees in a social security appeal.”

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Yesipovich v. Colvin, 166 F.Supp.3d 1000, 1011 (N.D. Cal. 2015). Plaintiff’s counsel furnished

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his agreement with Plaintiff providing he would be paid any EAJA fees directly, minus any offset

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due to any potential outstanding debt by Plaintiff. As the government has not challenged this

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assignment, it may still offset any of Plaintiff’s debt, and may discretionally reject the

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assignment, EAJA fees will be made payable to counsel.

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Accordingly, IT IS HEREBY ORDERED as follows:
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Plaintiff’s unopposed motion for an award of fees under the EAJA, ECF

No. 21, is GRANTED in full.
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Plaintiff is awarded $10,583.28 in fees, payable to Plaintiff’s counsel

subject to any offset of debts.

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Dated: February 2, 2024

____________________________________
DENNIS M. COTA
UNITED STATES MAGISTRATE JUDGE

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