1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DANIEL M., Case No.: 3:20-cv-1021-AHG 12 Plaintiff, ORDER GRANTING JOINT MOTION FOR ATTORNEY FEES 13 v. AND EXPENSES 14 KILOLO KIJAKAZI, Acting [ECF Nos. 24, 26] 15 Commissioner of Social Security,1

16

17 Defendant.

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20 21 Before the Court is the parties’ Joint Motion for the Award and Payment of Attorney 22 Fees and Expenses. ECF No. 24. The parties jointly move the court to award Plaintiff 23 Daniel M. (“Plaintiff”) attorney fees and expenses pursuant to the Equal Access to Justice 24 25 26 1 Kilolo Kijakazi became the Acting Commissioner of the Social Security Administration 27 on July 9, 2021. Although Plaintiff originally brought this action against Former Commissioner Andrew Saul, this case may properly proceed against Kilolo Kijakazi 28 1 Act (“EAJA”),

(d).

For the reasons set forth below, the Court 2 GRANTS the parties’ joint motion. 3 I. BACKGROUND 4 The underlying action involves Plaintiff’s challenge to the denial of his application 5 for social security supplemental security income benefits. On June 3, 2020, Plaintiff filed 6 a complaint against the acting Commissioner of Social Security. ECF No. 1. Defendant 7 filed the administrative record in lieu of an answer. ECF No. 19. The Court set a 8 scheduling order, requiring formal settlement discussions, a Joint Status Report be filed by 9 May 28, 2021, and a Joint Motion for Judicial Review of Final Decision of the 10 Commissioner of Social Security (“Joint Motion for Judicial Review”) be filed by 11 August 27, 2021. ECF No. 20. On May 25, 2021, instead of filing the Joint Status Report 12 or Joint Motion for Judicial Review, the parties filed a joint motion for voluntary remand 13 pursuant to sentence four of

(g), which sought a remand and entry of 14 judgment. ECF No. 21. On May 26, 2021, the Court granted the joint motion, remanded 15 the case to the Commissioner of Social Security for further administration action, and 16 entered a final judgment reversing the final decision of the Commissioner. ECF No. 22. A 17 Clerk’s Judgment was entered on May 26, 2021. ECF No. 23. The instant motion follows. 18 ECF No. 24. The Court required the parties to submit supplemental briefing (ECF No. 25), 19 which the parties timely filed. ECF No. 26. The parties have jointly requested that 20 Plaintiff’s counsel receive compensation for 22.10 hours of work, at $207.78 per hour for 21 work performed in 2020 and $213.74 per hour for work completed in 2021, with the total 22 request discounted2 to $4,400.00. ECF Nos. 24, 26, 26-1, 26-3. 23 / / 24

25 2 In the parties’ itemization of fees, the total fee was calculated to be $4,689.68. ECF No. 26 26-3 at 2. However, in the parties’ joint motion, the total fee requested was $4,634.11. ECF 27 No. 26 at 1–2; ECF No. 26-1 at 3. Nonetheless, “the parties mutually agreed to settle for $4,400.” ECF No. 26 at 2; see ECF No. 24 at 1. 28 1 II. THRESHOLD ISSUE OF TIMELINESS 2 According to the EAJA, an application for fees must be filed “within thirty days of 3 final judgment.”

(d)(1)(B). A final judgment is “a judgment that is final 4 and not appealable . . . .”

(d)(2)(G). The Ninth Circuit has held that the 5 EAJA’s 30-day filing period does not begin to run until after the 60-day appeal period in 6 Federal Rule of Appellate Procedure 4(a).3 Hoa Hong Van v. Barnhart,

, 612 7 (9th Cir. 2007). 8 Here, the parties filed an attorney fees motion on August 18, 2021, 84 days after 9 final judgment was filed on May 26, 2021. The motion was filed 24 days after the 60-day 10 period expired and falls within the 30-day filing period. Accordingly, the motion for 11 attorney fees is timely. 12 III. DISCUSSION 13 Under the EAJA, a litigant is entitled to attorney fees and costs if: “(1) he is the 14 prevailing party; (2) the government fails to show that its position was substantially 15 justified or that special circumstances make an award unjust; and (3) the requested fees and 16 costs are reasonable.” Carbonell v. I.N.S.,

(9th Cir. 2005). The Court 17 will address these in turn. 18 A. Prevailing party 19 A plaintiff is a prevailing party if he “has ‘succeeded on any significant issue in 20 litigation which achieve[d] some of the benefit . . . sought in bringing suit.’” Ulugalu v. 21 Berryhill, No. 17cv1087-GPC-JLB,

, at *2 (S.D. Cal. Apr. 30, 2018) 22 (quoting Shalala v. Schaefer,

(1993)). Here, Plaintiff is the prevailing 23 party because this case was remanded pursuant to sentence four of

(g). 24 25 26 3 Federal Rule of Appellate Procedure 4(a) provides that a “notice of appeal may be filed 27 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. 28 1 Akopyan v. Barnhart,

(9th Cir. 2002) (“A plaintiff who obtains a 2 sentence four remand is considered a prevailing party for purposes of attorneys’ fees.”); 3 Ulugalu,

, at *2 (in a case where the parties jointly stipulated to remand, 4 “because the Court granted the Commissioner’s proposed order for remand and entered 5 judgment in favor of Plaintiff pursuant to sentence-four, Plaintiff is a prevailing party”); 6 see ECF No. 22 (remanding the case pursuant to sentence four of

(g)). 7 B. Substantial justification 8 The government bears the burden of proving that its position, both in the underlying 9 administrative proceedings and in the subsequent litigation, was substantially justified. 10 Meier v. Colvin,

(9th Cir. 2013). Here, “Defendant has stipulated to the 11 attorney[] fees and does not argue that the prevailing party’s position was substantially 12 unjustified.” Krebs v. Berryhill, 16cv3096-JLS-BGS,

, at *2 (S.D. Cal. 13 June 21, 2018); see also Black v. Berryhill, No. 18cv1673-JM-LL,

, at 14 *1 (S.D. Cal. June 11, 2019) (finding the second element met because, “in light of the joint 15 nature of the parties’ request and the court’s prior order remanding this action, the 16 government has not shown that its position was substantially justified.”); ECF No. 26-1 at 17 2 (here, “Defendant’s attorney contacted Plaintiff’s attorney and suggested that that the 18 parties enter into a joint stipulation for remand of Plaintiff’s Social Security disability claim 19 for a new administrative hearing”). Furthermore, “[b]ecause the Commissioner filed a 20 voluntary stipulation for remand and the matter was referred to an Administrative Law 21 Judge to make a new determination as to Plaintiff’s disability, the Court is persuaded the 22 Commissioner did not have substantial justification for denying Plaintiff disability rights.” 23 Ulugalu,

, at *3. 24 C. Reasonableness of Hours 25 The parties seek a fee award for 22.10 hours billed by Plaintiff’s counsel. ECF No. 26 26-2 at 2. The Court finds the number of hours billed by Plaintiff’s counsel reasonable. See 27

(d); Nadarajah v. Holder,

(9th Cir. 2009); see also 28 Costa v. Comm’r of SSA,

(9th Cir. 2012) (reiterating the Ninth 1 Circuit’s previous position that “‘lawyers are not likely to spend unnecessary time on 2 contingency fee cases in the hope of inflating their fees’ because ‘the payoff is too 3 uncertain.’ [] As a result, courts should generally defer to the ‘winning lawyer’s 4 professional judgment as to how much time he was required to spend on the case.’”) 5 (quoting Moreno v. City of Sacramento,

, 1112–13 (9th Cir. 2008)); see, e.g., 6 Costa,

(noting “[m]any district courts have noted that twenty to forty 7 hours is the range most often requested and granted in social security cases”); Krebs, 2018

, at *2 (finding that 21.7 hours billed by plaintiff’s counsel and 3.5 hours 9 billed by a paralegal a reasonable number of hours). 10 D. Reasonableness of Hourly Rate 11 The EAJA provides that the Court may award reasonable attorney fees “based upon 12 prevailing market rates for the kind and quality of the services furnished,” but “attorney 13 fees shall not be awarded in excess of $125 per hour unless the court determines that an 14 increase in the cost of living or a special factor, such as the limited availability of qualified 15 attorneys for the proceedings involved, justifies a higher fee.”

(d)(2)(A). 16 The Ninth Circuit’s hourly EAJA rates for work performed in 2020 and 2021, factoring in 17 increases in the cost of living, were $207.78 and $213.74, respectively. See United States 18 Courts for the Ninth Circuit, Statutory Maximum Rates Under the Equal Access to Justice 19 Act, https://www.ca9.uscourts.gov/attorneys/statutory-maximum-rates/ (last visited Aug. 20 27, 2021); see also Thangaraja v. Gonzales,

(9th Cir. 2005) (“EAJA 21 provides for an upward adjustment of the $125 rate contained in the statute, based on cost- 22 of-living increases”) (citing

(d)(2)(A)); see, e.g., Black,

2436393, at *1 (considering the Ninth Circuit’s hourly EAJA rate a reasonable rate). 24 Plaintiff’s counsel bills at an hourly rate of $400. ECF No. 26 at 1. Here, Plaintiff’s counsel 25 seeks discounted compensation of $207.78 per hour for work performed in 2020 and 26 $213.74 per hour for work performed in 2021. ECF No. 26-1 at 1. As such, the Court finds 27 that the hourly rates billed by counsel are reasonable. 28 / / 1 E. Assignment of Rights to Counsel 2 The parties jointly request that “[f]ees shall be made payable to Plaintiff, but if the 3 Department of the Treasury determines that Plaintiff does not owe a federal debt, then the 4 government shall cause the payment of fees, expenses and costs to be made directly to 5 Plaintiff’s attorney, Lisa Mouradian, pursuant to the assignment executed by Plaintiff.” 6 ECF No. 24 at 2; see ECF No. 26-4 (agreement signed by Plaintiff stating that “I assign 7 any right or interest I may have in the award of an EAJA fee and understand that the EAJA 8 award shall be paid to my attorney”).4 9 The Supreme Court has held that “a § 2412(d) fees award is payable to the litigant 10 and is therefore subject to a Government offset to satisfy a pre-existing debt that the litigant 11 owes the United States.” Astrue v. Ratliff,

, 588–89 (2010). In Ratliff, 12 plaintiff’s counsel was successful in plaintiff’s Social Security benefits suit and the court 13 granted the unopposed motion for fees under the EAJA.

However, before paying the 14 fee award, the government discovered that plaintiff owed the United States a debt that 15 predated the award, and accordingly, the government sought an offset of that owed amount. 16

Plaintiff’s counsel intervened and argued that the fee award belonged to plaintiff’s 17 counsel, and thus was not subject to offset for the litigant’s federal debts.

The Supreme 18 Court disagreed, finding that “Congress knows how to make fee awards payable directly 19 to attorneys where it desires to do so,” and because the fee was payable to a “prevailing 20 party,” Congress intended the fee to go to the litigant, and not the attorney.

at 595–97. 21 Nonetheless, “district courts have recognized that Ratliff does not prevent payment 22 of a fee award directly to the attorney where there has been a valid assignment and the 23

24 25 4 The Fee Agreement and Assignment of EAJA Fees, attached to the parties’ supplemental briefing, refers to Plaintiff’s counsel as “Don Jorgensen, or his designee[.]” ECF No. 26 26-4. The Court notes that, although Ms. Mouradian signed the agreement (see id.), and 27 although Ms. Mouradian’s law firm of record is listed on the docket as Jorgensen Law, neither the joint motion nor the supplemental briefing explicitly refers to her as the 28 1 plaintiff does not owe a debt to the government.” Ulugalu,

, at *4–*5 2 (reviewing Plaintiff’s assignment agreement and ordering that the EAJA fees be paid to 3 plaintiff’s counsel, subject to any administrative offset due to outstanding federal debt); 4 Bell v. Berryhill, No. 16cv809-MMC,

, at *5 (N.D. Cal. Jan. 17, 2018) 5 (same); Blackwell v. Astrue, No. CIV-08-1454-EFB,

, at *4–*5 (E.D. 6 Cal. Mar. 21, 2011) (same); Castaneda v. Astrue, No. EDCV-09-1850-OP, 2010 U.S. Dist.

, at *6–*8 (C.D. Cal. Jul. 20, 2010) (same); see also Calderon v. Astrue, No. 8 08cv1015-GSA,

, at *8 (E.D. Cal. Oct. 21, 2010) (“Plaintiff, as the 9 prevailing litigant, would normally be awarded the fees described above, subject to any 10 offset for applicable government debts. Defendant, however, seems to be content to permit 11 payment to Plaintiff’s counsel if Plaintiff does not have any qualifying government debt . 12 . . . This Court finds the government’s position to be reasonable and will therefore permit 13 payment to Plaintiff’s counsel provided Plaintiff has no government debt that requires 14 offset”); cf. Hernandez v. Berryhill, No. 15cv1322-DB,

, at *3 (E.D. 15 Cal. July 10, 2017) (declining to order that the EAJA fees be paid to plaintiff’s counsel, 16 subject to any administrative offset due to outstanding federal debt, because the parties 17 failed to produce evidence of an assignment agreement). 18 Here, Plaintiff assigned his right to EAJA fees to his attorney. ECF No. 26-4. 19 Accordingly, should Plaintiff not have a debt that is subject to offset, the award of fees may 20 be paid directly to counsel. 21 IV. CONCLUSION 22 As set forth above, it is hereby ordered that: 23 1. The parties’ Joint Motion for the Award and Payment of Attorney Fees and 24 Expenses (ECF Nos. 24, 26) is GRANTED; 25 2. Plaintiff is awarded attorney fees under the EAJA in the amount of $4,400.00 26 See ECF No. 24 at 1; ECF No. 26 at 2; and 27 3. Pursuant to Astrue v. Ratliff,

, 588–89 (2010), any payment shall 28 1 || owe a federal debt. If the United States Department of the Treasury determines that Plaintiff 2 ||does not owe a federal debt, the government shall accept Plaintiff’s assignment of EAJA 3 || fees and pay fees directly to Plaintiff’s counsel. See ECF No. 24 at 2; see, e.g., Mendoza v. 4 || Saul, No. 18cv925-SKO,

, at *5 (E.D. Cal. Jan 24, 2020). 5 6 IT IS SO ORDERED. 7 Dated: September 2, 2021 Morn H. Honorable Allison H. Goddard 9 United States Magistrate Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28