1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT 11 SOUTHERN DISTRICT OF CALIFORNIA 12 13 ROBERTA N., Case No.: 3:21-cv-01504-JLB

14 Plaintiff, ORDER GRANTING JOINT 15 v. MOTION FOR THE AWARD AND PAYMENT OF ATTORNEY FEES 16 KILOLO KIJAKAZI, Acting AND EXPENSES PURSUANT TO Commissioner of Social Security, 17 THE EQUAL ACCESS TO JUSTICE Defendant. ACT 18

19 [ECF No. 18] 20 21 22 Before the Court is a joint motion for an order awarding Plaintiff $7,500.00 in 23 attorney’s fees pursuant to the Equal Access to Justice Act (“EAJA”),

(d). 24 (ECF No. 18.) For the following reasons, the joint motion is GRANTED. 25 I. BACKGROUND 26 The underlying action involves Plaintiff’s appeal of the Social Security 27 Administration’s denial of her application for Supplemental Security Income benefits. 28 (ECF Nos. 1; 6.) The Commissioner of Social Security (“Commissioner”) filed the 1 administrative record on May 20, 2022. (ECF No. 11.) On July 22, 2022, Plaintiff filed a 2 merits brief. (ECF No. 14.) On August 26, 2022, the parties filed a joint motion for 3 voluntary remand to the agency for further administrative proceedings pursuant to sentence 4 four of

(g) and entry of judgment.1 (ECF No. 15.) That same day, the 5 Court granted the joint motion and remanded the matter to the agency for further 6 administrative proceedings pursuant to sentence four of

(g). (ECF No. 16.) 7 The Clerk of Court was directed to enter final judgment in favor of Plaintiff, and against 8 Defendant, reversing the final decision of the Commissioner. (Id.) Judgment was entered 9 on August 26, 2022. (ECF No. 17.) 10 II. DISCUSSION 11 A litigant is “entitled to attorney’s fees and costs if: (1) [s]he is the prevailing party; 12 (2) the government fails to show that its position was substantially justified or that special 13 circumstances make an award unjust; and (3) the requested fees and costs are reasonable.” 14 Carbonell v. I.N.S.,

(9th Cir. 2005) (citing Perez–Arellano v. Smith, 279

, 793 (9th Cir. 2002)); see also

(d)(1)(A). 16 The prevailing party is eligible to seek attorney’s fees within thirty days of final 17 judgment in the action.

(d)(1)(B). “A sentence four remand becomes a 18 final judgment, for purposes of attorneys’ fees claims brought pursuant to the EAJA, upon 19 expiration of the time for appeal.” Akopyan, 296 F.3d at 854 (citation omitted) (citing 20 Schalala, 509 U.S. at 297). Under Federal Rule of Appellate Procedure 4(a)(1)(B), the 21

22 23 1 Pursuant to

(g), an individual can seek judicial review after the final decision of the Commissioner of Social Security. “The fourth and sixth sentences of 24 Section 405(g) set forth the exclusive methods by which district courts may remand to the 25 Commissioner of Social Security Administration.” Akopyan v. Barnhart,

(9th Cir. 2002) (citing Schalala v. Schaefer,

(1993)). Specifically, 26 sentence four provides that “[t]he [district] court shall have power to enter, upon the 27 pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for 28 1 time for appeal expires sixty days after entry of judgment if one of the parties is a United 2 States officer sued in an official capacity. Therefore, a motion for attorney’s fees filed 3 after a sentence four remand is timely if filed within thirty days after Rule 4(a)’s sixty-day 4 appeal period has expired. Hoa Hong Van v. Barnhart,

(9th Cir. 2007). 5 Here, the Court finds the parties’ joint motion is timely2 and that Plaintiff is entitled 6 to EAJA fees. First, the Court remanded this case for further administrative proceedings 7 pursuant to sentence four of

(g) and entered judgment for Plaintiff. (ECF 8 Nos. 16; 17.) Plaintiff is therefore the prevailing party, for “[a] plaintiff who obtains a 9 sentence four remand,” even when further administrative review is ordered, “is considered 10 a prevailing party for purposes of attorneys’ fees.” Akopyan,

(citing 11 Schaefer, 509 U.S. at 297–98, 301–02); see also Roland S. v. Saul, No. 3:20-CV-01068- 12 AHG,

, at *2 (S.D. Cal. Sept. 7, 2021) (finding the plaintiff to be the 13 prevailing party where the case was remanded pursuant to sentence four of

405(g) based on a joint motion for voluntary remand). 15 Second, the Commissioner makes no argument that her position was substantially 16 justified. See Meier v. Colvin,

(9th Cir. 2013) (“It is the government’s 17 burden to show that its position was substantially justified.”). Rather, the Commissioner 18 filed a joint motion to voluntarily remand this case for further administrative proceedings, 19 and the instant fee request comes to the Court by way of a joint motion. See Ulugalu v. 20 Berryhill, No. 17-CV-01087-GPC-JLB,

, at *3 (S.D. Cal. Apr. 30, 2018) 21 (finding the Commissioner did not demonstrate substantial justification for her position 22 23 24 2 The instant joint motion was filed before the judgment became final. However, this 25 Court finds, as other courts have, that prematurity does not bar a motion for EAJA fees. See Auke Bay Concerned Citizen’s Advisory Council v. Marsh,

, 1393 (9th 26 Cir. 1986); Sergio C. v. Kijakazi, No. 20-CV-02270-AHG,

, at *2 (S.D. 27 Cal. Apr. 14, 2022) (applying Auke Bay to conclude a plaintiff’s EAJA fee application in a Social Security case was not premature where the court had remanded for payment of 28 1 where she filed a voluntary stipulation for remand and the matter was referred to an 2 administrative law judge to make a new determination as to the plaintiff’s disability). 3 Finally, Plaintiff’s requested fees are reasonable. Plaintiff’s counsel declares that 4 she spent 1.25 hours in 2021 at an hourly rate of $213.74, and she spent 31.75 hours in 5 2022 at an hourly rate of $231.49 working on this case, for a discount total of $7,500.00.3 6 (ECF Nos. 18-1 at 3; 18-3 at ¶ 3.) The hours are reasonable in light of Plaintiff’s results in 7 the case. See Hensley v. Eckerhart,

(1983) (“Where a plaintiff has 8 obtained excellent results, his attorney should recover a fully compensatory fee.”); see also 9 Dana F. v. Kijakazi, No. 20-CV-01548-AHG,

, at *3 (S.D. Cal. Feb. 23, 10 2022) (finding 40 hours billed by plaintiff’s counsel a reasonable number of hours). 11 Notably, this case was resolved early in Plaintiff’s favor. See Costa v. Comm’r of Soc. Sec. 12 Admin.,

(9th Cir. 2012) (“Many district courts have noted that twenty 13 to forty hours is the range most often requested and granted in social security cases.”). 14 The hourly rate is also reasonable. Counsel’s hourly rate of $213.74 for work done 15 in 2021 is less than the Ninth Circuit’s EAJA hourly rate, and Counsel’s hourly rate of 16 $231.49 for work done in 2022 is equal to the Ninth Circuit’s EAJA hourly rate. See 17 Statutory Maximum Rates Under the Equal Access to Justice Act, U.S. COURTS FOR THE 18 NINTH CIRCUIT, https://www.ca9.uscourts.gov/attorneys/statutory-maximum-rates/ (last 19 visited October 3, 2022); see also Roland S.,

, at *3 (finding hourly rates 20 consistent with the Ninth Circuit’s EAJA rates to be reasonable). 21 /// 22 /// 23 /// 24 /// 25

26 27 3 In Plaintiff’s itemization of fees, the total fee was calculated to be $7,621.73. (ECF No. 18-2.) However, the parties negotiated a lesser amount and, in the parties’ joint 28 1 CONCLUSION 2 For the foregoing reasons, the Court GRANTS the parties’ joint motion 3 ||(ECF No. 18) and awards Plaintiff fees in the amount of $7,500.00, as authorized by 28 4 ||U.S.C. § 2412(d) subject to the terms of the joint motion. 5 IT IS SO ORDERED. 6 || Dated: September 30, 2022 . Bulbeadt 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28