Simmons v. Saul

Filing 28

ORDER granting 25 Joint Motion for the award and payment of Attorney Fees and expenses. Signed by Magistrate Judge Allison H. Goddard on 9/07/2021. (jpp)

Case 3:20-cv-01068-AHG Document 28 Filed 09/07/21 PageID.797 Page 1 of 8

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10
11

ROLAND S.,

Case No.: 3:20-cv-01068-AHG
Plaintiff,

12
13

v.

14

ORDER GRANTING JOINT
MOTION FOR THE AWARD AND
PAYMENT OF ATTORNEY FEES
AND EXPENSES

ANDREW SAUL, Commissioner of
Social Security,

15
16

Defendant.

[ECF No. 25]

17
18
19
20
21
22
23
24
25
26
27
28

1

3:20-cv-01068-AHG

Case 3:20-cv-01068-AHG Document 28 Filed 09/07/21 PageID.798 Page 2 of 8

1

Before the Court is the parties’ Joint Motion for the Award and Payment of Attorney

2

Fees and Expenses Pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412(d) and

3

Costs Pursuant to 28 U.S.C. § 1920.1 ECF No. 25. For the reasons set forth below, the

4

Court GRANTS the parties’ joint motion.

5

I.

BACKGROUND

6

The underlying action involves Plaintiff’s appeal of the Social Security

7

Administration’s denial of his application for supplemental security income at the agency

8

level. ECF No. 1. After the Commissioner of Social Security (“Defendant”) filed the

9

administrative record in lieu of an answer, the Court issued a scheduling order. ECF No.

10

20. Among other requirements in the scheduling order, the Court directed the parties to

11

engage in formal settlement discussions, and set a deadline of June 11, 2021 for the parties

12

either to stipulate to a dismissal or remand of the case, or to file a Joint Status Report

13

notifying the Court that they were unable to resolve the matter in settlement discussions.

14

See id. at 2.

15

On June 10, 2021, the parties filed a joint motion for voluntary remand pursuant to

16

sentence four of 42 U.S.C. § 405(g). ECF No. 22. On June 11, 2021, the Court granted the

17

joint motion, remanded the case to the Commissioner of Social Security for further

18

administrative action, and entered a final judgment reversing the final decision of the

19

Commissioner. ECF No. 23. A Clerk’s Judgment was entered the same day. ECF No. 24.

20

On August 30, 2021, the parties filed the instant motion. ECF No. 25. The Court

21

required the parties to submit supplemental briefing (ECF No. 26), which the parties timely

22

filed. ECF No. 27. The parties have jointly requested that Plaintiff’s counsel receive

23

compensation for 5.36 hours of work, at $207.78 per hour for 2.82 hours of work done in

24

2020 and $213.74 for 2.54 hours of work done in 2021, and that two paralegals who

25
26
27
28

Although the joint motion is styled as a motion seeking fees and costs, the amount of
costs sought is $0.00. See ECF No. 25 at 1. The Court therefore does not address the request
for “costs” in its discussion.
1

2

3:20-cv-01068-AHG

Case 3:20-cv-01068-AHG Document 28 Filed 09/07/21 PageID.799 Page 3 of 8

1

assisted Plaintiff’s counsel receive compensation for 3.4 hours of work at $143.00 per hour,

2

with the total request discounted 2 to $1,600.00. ECF Nos. 25, 27.

3

II.

THRESHOLD ISSUE OF TIMELINESS

4

According to the EAJA, an application for fees must be filed “within thirty days of

5

final judgment.” 28 U.S.C. § 2412(d)(1)(B). A final judgment is “a judgment that is final

6

and not appealable . . . .” 28 U.S.C. § 2412(d)(2)(G). The Ninth Circuit has held that the

7

EAJA’s 30-day filing period does not begin to run until after the 60-day appeal period in

8

Federal Rule of Appellate Procedure 4(a). 3 Hoa Hong Van v. Barnhart, 483 F.3d 600, 612

9

(9th Cir. 2007).

10

Here, the parties filed the motion for EAJA fees on August 30, 2021, 80 days after

11

final judgment was entered on June 11, 2021. The motion was filed 20 days after the 60-

12

day period expired and falls within the 30-day filing period. Accordingly, the motion for

13

attorney fees is timely.

14

III.

DISCUSSION

15

Under the EAJA, a litigant is entitled to attorney fees and costs if: “(1) he is the

16

prevailing party; (2) the government fails to show that its position was substantially

17

justified or that special circumstances make an award unjust; and (3) the requested fees and

18

costs are reasonable.” Carbonell v. I.N.S., 429 F.3d 894, 898 (9th Cir. 2005). The Court

19

will address these elements in turn.

20

A.

21

A plaintiff is a prevailing party if he “has ‘succeeded on any significant issue in

22

litigation which achieve[d] some of the benefit . . . sought in bringing suit.’” Ulugalu v.

Prevailing party

23
24
25
26
27
28

In the parties’ itemization of fees, the total fee was calculated to be $1,615.04. ECF No.
27-1 at 2. However, in the parties’ joint motion, the total fee requested was $1,600. ECF
No. 25.
2

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).

3

3

3:20-cv-01068-AHG

Case 3:20-cv-01068-AHG Document 28 Filed 09/07/21 PageID.800 Page 4 of 8

1

Berryhill, No. 17cv1087-GPC-JLB, 2018 WL 2012330, at *2 (S.D. Cal. Apr. 30, 2018)

2

(quoting Shalala v. Schaefer, 509 U.S. 292, 302 (1993)). Here, Plaintiff is the prevailing

3

party because this case was remanded pursuant to sentence four of 42 U.S.C. § 405(g).

4

Akopyan v. Barnhart, 296 F.3d 852, 854 (9th Cir. 2002) (“A plaintiff who obtains a

5

sentence four remand is considered a prevailing party for purposes of attorneys’ fees.”);

6

Ulugalu, 2018 WL 2012330, at *2 (in a case where the parties jointly stipulated to remand,

7

“because the Court granted the Commissioner’s proposed order for remand and entered

8

judgment in favor of Plaintiff pursuant to sentence-four, Plaintiff is a prevailing party”);

9

see ECF Nos. 22, 23 (remanding the case pursuant to sentence four of 42 U.S.C. § 405(g)).

10

B.

11

The government bears the burden of proving that its position, both in the underlying

12

administrative proceedings and in the subsequent litigation, was substantially justified.

13

Meier v. Colvin, 727 F.3d 867, 870 (9th Cir. 2013). Here, the parties have stipulated to the

14

EAJA amount, and explain that the stipulation “constitutes a compromise settlement of

15

[Plaintiff’s] request for EAJA attorney fees[.]” ECF No. 25 at 2. Although Defendant’s

16

stipulation does not constitute an admission of liability on its part, the compromise nature

17

of the request is sufficient to find the second element met, given that “Defendant has

18

stipulated to the attorney[] fees and does not argue that the prevailing party’s position was

19

substantially unjustified.” Krebs v. Berryhill, 16cv3096-JLS-BGS, 2018 WL 3064346, at

20

*2 (S.D. Cal. June 21, 2018); see also Black v. Berryhill, No. 18cv1673-JM-LL, 2019 WL

21

2436393, at *1 (S.D. Cal. June 11, 2019) (finding the second element met because, “in

22

light of the joint nature of the parties’ request and the court’s prior order remanding this

23

action, the government has not shown that its position was substantially justified.”).

24

Furthermore, “[b]ecause the Commissioner filed a voluntary stipulation for remand and the

25

matter was referred to an Administrative Law Judge to make a new determination as to

26

Plaintiff’s disability, the Court is persuaded the Commissioner did not have substantial

27

justification for denying Plaintiff disability rights.” Ulugalu, 2018 WL 2012330, at *3.

28

\\

Substantial justification

4

3:20-cv-01068-AHG

Case 3:20-cv-01068-AHG Document 28 Filed 09/07/21 PageID.801 Page 5 of 8

1

C.

2

The parties seek a fee award for 5.36 hours billed by Plaintiff’s counsel and 3.4 hours

3

billed by Plaintiff’s counsel’s paralegals, for a total of 8.76 hours. ECF No. 27-1. The Court

4

finds the number of hours billed by Plaintiff’s counsel and paralegals reasonable. See 28

5

U.S.C. § 2412(d); Nadarajah v. Holder, 569 F.3d 906, 918 (9th Cir. 2009); see also Costa

6

v. Comm’r of SSA, 690 F.3d 1132, 1136 (9th Cir. 2012) (reiterating the Ninth Circuit’s

7

previous position that “‘lawyers are not likely to spend unnecessary time on contingency

8

fee cases in the hope of inflating their fees’ because ‘the payoff is too uncertain.’ [] As a

9

result, courts should generally defer to the ‘winning lawyer’s professional judgment as to

10

how much time he was required to spend on the case.’”) (quoting Moreno v. City of

11

Sacramento, 534 F.3d 1106, 1112–13 (9th Cir. 2008)). Indeed, the number of hours billed

12

is quite modest compared to the typical range seen in social security appeals. See, e.g.,

13

Costa, 690 F.3d at 1136 (noting “[m]any district courts have noted that twenty to forty

14

hours is the range most often requested and granted in social security cases”); Krebs, 2018

15

WL 3064346, at *2 (finding 21.7 hours billed by plaintiff’s counsel and 3.5 hours billed

16

by a paralegal a reasonable number of hours); Rogers v. Astrue, No. 1:09-CV-02158-JLT,

17

2010 WL 4569058, at *6 (E.D. Cal. Nov. 3, 2010) (reducing counsel’s compensation for

18

time spent opposing remand and arguing for an immediate award of benefits, but

19

nonetheless finding 9.6 hours billed by an attorney and 2.5 hours billed by a paralegal to

20

be reasonable in a case where, as here, the Commissioner voluntarily remanded a social

21

security appeal pursuant to sentence four of 42 U.S.C. § 405(g)).

Reasonableness of Hours

22

D.

23

The EAJA provides that the Court may award reasonable attorney fees “based upon

24

prevailing market rates for the kind and quality of the services furnished,” but “attorney

25

fees shall not be awarded in excess of $125 per hour unless the court determines that an

26

increase in the cost of living or a special factor, such as the limited availability of qualified

27

attorneys for the proceedings involved, justifies a higher fee.” 28 U.S.C. § 2412(d)(2)(A).

28

The Ninth Circuit’s hourly EAJA rates for work performed in 2020 and 2021, factoring in

Reasonableness of Hourly Rate

increases in the cost of living, were $207.78 and $213.74, respectively. See United States
5

3:20-cv-01068-AHG

Case 3:20-cv-01068-AHG Document 28 Filed 09/07/21 PageID.802 Page 6 of 8

1

Courts for the Ninth Circuit, Statutory Maximum Rates Under the Equal Access to Justice

2

Act, https://www.ca9.uscourts.gov/attorneys/statutory-maximum-rates/ (last visited Sep. 7,

3

2021); see also Thangaraja v. Gonzales, 428 F.3d 870, 876 (9th Cir. 2005) (“EAJA

4

provides for an upward adjustment of the $125 rate contained in the statute, based on cost-

5

of-living increases”) (citing 28 U.S.C. § 2412(d)(2)(A)); see, e.g., Black, 2019 WL

6

2436393, at *1 (considering the Ninth Circuit’s hourly EAJA rate a reasonable rate).

7

Consistent with the Ninth Circuit’s hourly EAJA rates, Plaintiff’s counsel seeks

8

compensation of $207.78 per hour for work performed in 2020 and $213.74 per hour for

9

work performed in 2021. ECF No. 27-1. As such, the Court finds that the hourly rates billed

10

by counsel are reasonable.

11

The Court also finds the $143 hourly rate billed by the paralegals at Plaintiff’s

12

counsel’s firm to be reasonable. Plaintiff’s counsel selected this billing rate for EAJA

13

purposes because it “represents the median paralegal billing rate in California as reported

14

in United States Consumer Law Attorney Fee Survey Report 2017-2018, pp. 58-59 (R.L.

15

Burdge 2015)[.]” ECF No. 27 at 2; see also ECF No. 27-2 at 20 (copy of the cited Burdge

16

Attorney Fee Survey Report). Plaintiff’s counsel further notes that the 2015-2019 USAO

17

fee matrix and the 2019 Laffey Matrix support even higher rates for paralegals, at $166

18

and $203, respectively. See ECF No. 27-2 at 43 (USAO fee matrix), 47 (Laffey Matrix).

19

Courts may consider the United States Consumer Law Attorney Fee Survey Report

20

to determine the appropriate market rate for paralegals in a given area. See, e.g., Ulugalu,

21

2018 WL 2012330, at *4; Rosemary G. V. v. Saul, No. 3:19-CV-00715-RBM, 2020 WL

22

6703123, at *5 (S.D. Cal. Nov. 12, 2020) (approving a $130 rate for paralegal fees, but

23

noting that the United States Consumer Law Attorney Fee Survey Report provides that the

24

median hourly rate for paralegals in San Diego specifically is $147). See also ECF No. 27-

25

2 at 34 (confirming the average paralegal billing rate in San Diego is $147). Accordingly,

26

the Court agrees that a $143 hourly rate for a paralegal in the San Diego area is reasonable.

27

E.

28

The parties jointly request that “[f]ees shall be made payable to [Plaintiff], but if the

Assignment of Rights to Counsel

Department of the Treasury determines that [Plaintiff] does not owe a federal debt, then
6

3:20-cv-01068-AHG

Case 3:20-cv-01068-AHG Document 28 Filed 09/07/21 PageID.803 Page 7 of 8

1

the government shall cause the payment of fees, expenses and costs to be made directly to

2

Law Offices of Lawrence D. Rohlfing, pursuant to the assignment executed by [Plaintiff].”

3

ECF No. 25 at 2; see also ECF No. 25-1 (agreement signed by Plaintiff stating that the

4

attorney shall seek compensation under the EAJA, and the Plaintiff “shall endorse such

5

documents as are needed to pay Attorney any amounts under the EAJA and assigns such

6

fee awards to Attorney.”).

7

The Supreme Court has held that “a § 2412(d) fees award is payable to the litigant

8

and is therefore subject to a Government offset to satisfy a pre-existing debt that the litigant

9

owes the United States.” Astrue v. Ratliff, 560 U.S. 586, 588–89 (2010). Nonetheless,

10

“district courts have recognized that Ratliff does not prevent payment of a fee award

11

directly to the attorney where there has been a valid assignment and the plaintiff does not

12

owe a debt to the government.” Ulugalu, 2018 WL 2012330, at *4–*5 (reviewing

13

Plaintiff’s assignment agreement and ordering that the EAJA fees be paid to plaintiff’s

14

counsel, subject to any administrative offset due to outstanding federal debt); Bell v.

15

Berryhill, No. 16cv809-MMC, 2018 WL 452110, at *5 (N.D. Cal. Jan. 17, 2018) (same);

16

Blackwell v. Astrue, No. CIV-08-1454-EFB, 2011 WL 1077765, at *4–*5 (E.D. Cal. Mar.

17

21, 2011) (same); Castaneda v. Astrue, No. EDCV-09-1850-OP, 2010 U.S. Dist. LEXIS

18

72887, at *6–*8 (C.D. Cal. Jul. 20, 2010) (same); see also Calderon v. Astrue, No.

19

08cv1015-GSA, 2010 WL 4295583, at *8 (E.D. Cal. Oct. 21, 2010) (“Plaintiff, as the

20

prevailing litigant, would normally be awarded the fees described above, subject to any

21

offset for applicable government debts. Defendant, however, seems to be content to permit

22

payment to Plaintiff’s counsel if Plaintiff does not have any qualifying government debt

23

. . . . This Court finds the government’s position to be reasonable and will therefore permit

24

payment to Plaintiff’s counsel provided Plaintiff has no government debt that requires

25

offset”); cf. Hernandez v. Berryhill, No. 15cv1322-DB, 2017 WL 2930802, at *3 (E.D.

26

Cal. July 10, 2017) (declining to order that the EAJA fees be paid to plaintiff’s counsel,

27

subject to any administrative offset due to outstanding federal debt, because the parties

28

failed to produce evidence of an assignment agreement).

7

3:20-cv-01068-AHG

Case 3:20-cv-01068-AHG Document 28 Filed 09/07/21 PageID.804 Page 8 of 8

1

Here, Plaintiff assigned his right to EAJA fees to his attorney. ECF No. 25-1.

2

Accordingly, if Plaintiff has no federal debt that is subject to offset, the award of fees may

3

be paid directly to Law Offices of Lawrence D. Rohfling, pursuant to the assignment

4

agreement.

5

IV.

6

Based on the foregoing, the Court hereby ORDERS that:

7
8
9
10
11
12
13
14
15
16
17
18
19
20
21

CONCLUSION
1.

The parties’ Joint Motion for the Award and Payment of Attorney Fees and

Expenses Pursuant to the Equal Access to Justice Act, 28 U.S.C. §2412(d) and Costs
Pursuant to 28 U.S.C. § 1920 (ECF No. 25) is GRANTED;
2.

Plaintiff is awarded attorney fees under the EAJA in the amount of $1,600.00;

3.

Pursuant to Astrue v. Ratliff, 560 U.S. 586, 588–89 (2010), any payment shall

and
be made payable to Plaintiff and delivered to Plaintiff’s 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 Plaintiff’s assignment of EAJA
fees and pay fees directly to Plaintiff’s counsel. See ECF No. 25 at 2; see, e.g., Mendoza v.
Saul, No. 18cv925-SKO, 2020 WL 406773, at *5 (E.D. Cal. Jan 24, 2020).
IT IS SO ORDERED.
Dated: September 7, 2021

22
23
24
25
26
27
28

8

3:20-cv-01068-AHG