1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JALAL H., Case No.: 3:22-cv-02043-AHG 12 Plaintiff, ORDER GRANTING JOINT MOTION FOR THE AWARD AND 13 v. PAYMENT OF ATTORNEY FEES 14 COMMISSIONER OF SOCIAL AND EXPENSES SECURITY, 15 [ECF No. 18] Defendant. 16 17 18 19 Before the Court is the parties’ Joint Motion for the Award and Payment of Attorney 20 Fees and Expenses Pursuant to the Equal Access to Justice Act (“EAJA”),

2412(d). ECF No. 18. For the reasons set forth below, the Court GRANTS the motion. 22 I. BACKGROUND 23 The underlying action involves Plaintiff’s challenge to the denial of his application 24 for social security disability and supplemental security income benefits. On 25 December 23, 2022, Plaintiff filed a complaint against the acting Commissioner of Social 26 Security. ECF No. 1. Defendant filed the administrative record in lieu of an answer. ECF 27 No. 13. The Court set a scheduling order, requiring formal settlement discussions, a Joint 28 Status Report be filed by May 5, 2023, and a Joint Motion for Judicial Review of Final 1 Decision of the Commissioner of Social Security (“Joint Motion for Judicial Review”) be 2 filed by August 4, 2023. ECF No. 14. On April 19, 2023, instead of filing the Joint Status 3 Report, the parties filed a joint motion for voluntary remand pursuant to sentence four of 4

(g), which sought a remand and entry of judgment. ECF No. 15. On 5 April 19, 2023, the Court granted the joint motion, remanded the case to the Commissioner 6 of Social Security for further administration action, and entered a final judgment reversing 7 the final decision of the Commissioner. ECF No. 16. A Clerk’s Judgment was entered the 8 same date. ECF No. 17. The instant motion follows. 9 On May 4, 2023, the parties filed the instant motion. ECF No. 18. The parties jointly 10 request that Plaintiff’s counsel receive compensation for 12.25 hours of work, at $231.49 11 per hour for 3.75 hours of work done in 2022 and at $234.95 per hour for 8.5 hours of work 12 done in 2023, with the total request as $2,865.13.1 ECF Nos. 18-2, 18-3. 13 II. THRESHOLD ISSUE OF TIMELINESS 14 According to the EAJA, an application for fees must be filed “within thirty days of 15 final judgment.”

(d)(1)(B). A final judgment is “a judgment that is final 16 and not appealable . . . .”

(d)(2)(G). The Ninth Circuit has held that the 17 EAJA’s 30-day filing period does not begin to run until after the 60-day appeal period in 18 Federal Rule of Appellate Procedure 4(a).2 Hoa Hong Van v. Barnhart,

, 612 19

20 21 1 Though the joint motion notes the total fees sought as $2,747.66, the Court construes this as a scrivener’s error. See, e.g., ECF No. 18-2 at 1 (“Plaintiff seeks compensation for 12.25 22 hours of work, [] at $868.07 for work completed in 2022, and $1,997.16 for work 23 completed in 2023, for a total attorney fee of $2,747.66” which actually equals $2,865.23); ECF No. 18-3 (“$520.85 […+] $173.61 […+] 173.61 […+] $1,233.49 […+] $587.37 […+] 24 $58.73[…+] $117.47 […=] $2,747.66,” which actually equals $2,865.13). The Court 25 construes the parties’ intent that the math add up to the correct amount. 26 2 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 (9th Cir. 2007). 2 Here, the parties filed the motion for EAJA fees on May 4, 2023, 15 days after 3 judgment was entered on April 19, 2023. Therefore, at first blush, the motion before the 4 Court may seem premature, since it was filed before the end of the 60-day appeal period. 5 See Auke Bay Concerned Citizen’s Advisory Council v. Marsh,

, 1393 (9th 6 Cir. 1986) (“Section 2412(d)(1)(B) establishes a clear date after which applications for 7 attorney fees must be rejected as untimely; 30 days after final judgment. The statute is less 8 clear about a time before which applications must be rejected.”). 9 However, the Auke Bay court explained that even where the appeal period has not 10 yet run, an application for EAJA attorney fees is nonetheless timely “if (1) the applicant 11 files no more than 30 days after final judgment, and (2) the applicant is able to show that 12 he or she ‘is a prevailing party and is eligible to receive an award under this subsection.’” 13 Id. (emphasis added) (quoting

(d)(1)(B)). Thus, an early application is 14 timely where “a court order substantially grants the applicant’s remedy before final 15 judgment is entered” such that the applicant is able to show that he has prevailed. Auke

F.2d at 1393. The Court finds that these criteria are met here, such that the joint 17 motion for EAJA fees is timely. See, e.g., Dickey v. Colvin, No. 14-cv-00629-WHO, 2015

, at *3 (N.D. Cal. Feb. 10, 2015) (applying Auke Bay to conclude a plaintiff’s 19 EAJA fee motion was not premature in a Social Security case, although the motion was 20 filed before the 60-day appeal period had run, where the court had remanded for payment 21 of benefits rather than further proceedings); see cf. Shalala v. Schaefer,

, 302 22 (1993) (“An EAJA application may be filed until 30 days after a judgment becomes ‘not 23 appealable’—i.e., 30 days after the time for appeal has ended.”) (emphasis added). Here, 24 the Court substantially granted Plaintiff’s remedy before entry of final judgment, by 25 granting the parties’ Joint Motion for Voluntary Remand and reversing the final decision 26 of the Commissioner. See ECF Nos. 15, 16. Therefore, the Court finds the joint motion is 27 timely. 28 / / 1 III. DISCUSSION 2 Under the EAJA, a litigant is entitled to attorney fees and costs if: “(1) he is the 3 prevailing party; (2) the government fails to show that its position was substantially 4 justified or that special circumstances make an award unjust; and (3) the requested fees and 5 costs are reasonable.” Carbonell v. I.N.S.,

(9th Cir. 2005). See also 28

(a), (d). The Court will address these elements in turn. 7 A. Prevailing party 8 A plaintiff is a prevailing party if he “has ‘succeeded on any significant issue in 9 litigation which achieve[d] some of the benefit . . . sought in bringing suit.’” Ulugalu v. 10 Berryhill, No. 17cv1087-GPC-JLB,

, at *2 (S.D. Cal. Apr. 30, 2018) 11 (quoting Schaefer,

). Here, Plaintiff is the prevailing party because this case 12 was remanded pursuant to sentence four of

(g). Akopyan v. Barnhart, 296

(9th Cir. 2002) (“A plaintiff who obtains a sentence four remand is 14 considered a prevailing party for purposes of attorneys’ fees.”); Ulugalu,

2012330, at *2 (in a case where the parties jointly stipulated to remand, “because the Court 16 granted the Commissioner’s proposed order for remand and entered judgment in favor of 17 Plaintiff pursuant to sentence-four, Plaintiff is a prevailing party”); see ECF No. 16 18 (remanding the case pursuant to sentence four of

(g)). 19 B. Substantial justification 20 The government bears the burden of proving that its position, both in the underlying 21 administrative proceedings and in the subsequent litigation, was substantially justified 22 under 28 U.S.C. 2412(d)(1)(A). Meier v. Colvin,

(9th Cir. 2013). Here, 23 the parties have stipulated to the EAJA amount, and explain that the stipulation “constitutes 24 a compromise settlement of Plaintiff’s request for EAJA attorney fees[.]” ECF No. 18 at 25 2. Although Defendant’s stipulation does not constitute an admission of liability on its part, 26 the compromise nature of the request is sufficient to find the second element met, given 27 that “Defendant … does not argue that the prevailing party’s position was substantially 28 unjustified.” Krebs v. Berryhill, No. 16-cv-3096-JLS-BGS,

, at *2 (S.D. 1 Cal. June 21, 2018); see also Black v. Berryhill, No. 18-cv-1673-JM-LL,

2436393, at *1 (S.D. Cal. June 11, 2019) (finding the second element met because, “in 3 light of the joint nature of the parties’ request and the court’s prior order remanding this 4 action, the government has not shown that its position was substantially justified.”). 5 Furthermore, “[b]ecause the Commissioner filed a voluntary stipulation for remand and the 6 matter was referred to an Administrative Law Judge to make a new determination as to 7 Plaintiff’s disability, the Court is persuaded the Commissioner did not have substantial 8 justification for denying Plaintiff disability rights.” Ulugalu,

, at *3. 9 Accordingly, the Court finds no basis to deny the EAJA fee request pursuant to 10 § 2412(d)(1)(A). 11 C. Reasonableness of Hours 12 counsel receive compensation for 12.25 hours of work, at $231.49 per hour for 3.75 13 hours of work done in 2022 and at $234.95 per hour for 8.5 hours of work done in 2023, 14 with the total request as $2,747.66. ECF Nos. 18-2, 18-3. 15 Plaintiff seeks a fee award for 12.25 hours billed by Plaintiff’s counsel. ECF Nos. 16 18-2, 18-3. The Court finds the number of hours billed by Plaintiff’s counsel to be 17 reasonable. See

(d); Nadarajah v. Holder,

(9th Cir. 18 2009); see also Costa v. Comm’r of Soc. Sec.,

(9th Cir. 2012) 19 (reiterating the Ninth Circuit’s previous position that “‘lawyers are not likely to spend 20 unnecessary time on contingency fee cases in the hope of inflating their fees’ because ‘the 21 payoff is too uncertain.’ [] As a result, courts should generally defer to the ‘winning 22 lawyer’s professional judgment as to how much time he was required to spend on the 23 case.’”) (quoting Moreno v. City of Sacramento,

, 1112–13 (9th Cir. 2008)). 24 Indeed, the number of hours billed is quite modest compared to the typical range in social 25 security appeals. Roland S. v. Saul, No. 3:20cv1068-AHG,

, at *2 (S.D. 26 Cal. Sept. 7, 2021) (finding a total of 8.76 hours billed by counsel and paralegal to be 27 modest, in a case where, like here, the parties filed joint motion for voluntary remand 28 instead of a Joint Status Report); see, e.g., Costa,

(noting “[m]any district 1 courts have noted that twenty to forty hours is the range most often requested and granted 2 in social security cases”); Daniel M. v. Kijakazi, No. 3:20cv1021-AHG,

3929681, at *2 (S.D. Cal. Sept. 2, 2021) (finding that 22.1 hours billed by plaintiff’s 4 counsel a reasonable number of hours when the parties filed joint motion for voluntary 5 remand instead of a Joint Motion for Judicial Review). 6 D. Reasonableness of Hourly Rate 7 The EAJA provides that the Court may award reasonable attorney fees “based upon 8 prevailing market rates for the kind and quality of the services furnished,” but “attorney 9 fees shall not be awarded in excess of $125 per hour unless the court determines that an 10 increase in the cost of living or a special factor, such as the limited availability of qualified 11 attorneys for the proceedings involved, justifies a higher fee.”

(d)(2)(A). 12 The statutory maximum EAJA rate for work performed in the Ninth Circuit, factoring in 13 increases in the cost of living, was $234.95 for 2022 and 2023. See United States Courts for 14 the Ninth Circuit, Statutory Maximum Rates Under the Equal Access to Justice 15 Act, https://www.ca9.uscourts.gov/attorneys/statutory-maximum-rates/ (last visited 16 May 5, 2023) (listing $234.95 for 2022 and not including a rate for 2023, but noting that 17 “[i]f no rate is posted for the period in which your work was performed, please use the rate 18 that is posted for the previous period”); see also Thangaraja v. Gonzales,

, 19 876 (9th Cir. 2005) (“EAJA provides for an upward adjustment of the $125 rate contained 20 in the statute, based on cost-of-living increases”) (citing

(d)(2)(A)); see, 21 e.g., Black,

, at *1 (considering the Ninth Circuit’s hourly EAJA rate a 22 reasonable rate). Consistent with the Ninth Circuit’s hourly EAJA rates, Plaintiff’s counsel 23 billed at a rate of $234.95 for work performed in 2023. ECF Nos. 18-2, 18-3. Plaintiff’s 24 counsel billed $231.49 per hour for work performed in 2022, a rate lower than the Ninth 25 Circuit EAJA rate.

As such, the Court finds that the hourly rates billed by counsel are 26 reasonable. 27 E. Assignment of Rights to Counsel 28 The parties jointly request that “[f]ees shall be made payable to Plaintiff, but if the 1 Department of the Treasury determines that Plaintiff does not owe a federal debt, then the 2 government shall cause the payment of fees, expenses and costs to be made directly to 3 Plaintiff’s attorney, Lisa Mouradian, pursuant to the assignment executed by Plaintiff.” 4 ECF No. 18 at 2; see also ECF No. 18-1 (“declaration and assignment” signed by Plaintiff 5 stating that he “hereby assign[s] any entitlement I may have to a fee under the [] EAJA [] 6 to my attorney, Lisa Mouradian…. Therefore, I ask that the EAJA award should be made 7 payable to my attorney and not me as the Plaintiff”). 8 The Supreme Court has held that “a § 2412(d) fees award is payable to the litigant 9 and is therefore subject to a Government offset to satisfy a pre-existing debt that the litigant 10 owes the United States.” Astrue v. Ratliff,

, 588–89 (2010). Nonetheless, 11 “district courts have recognized that Ratliff does not prevent payment of a fee award 12 directly to the attorney where there has been a valid assignment and the plaintiff does not 13 owe a debt to the government.” Ulugalu,

, at *4–5 (reviewing Plaintiff’s 14 assignment agreement and ordering that the EAJA fees be paid to plaintiff’s counsel, 15 subject to any administrative offset due to outstanding federal debt); Bell v. Berryhill, No. 16 16cv809-MMC,

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

, at *4–5 (E.D. Cal. Mar. 21, 2011) 18 (same); see also Calderon v. Astrue, No. 08cv1015-GSA,

, at *8 (E.D. 19 Cal. Oct. 21, 2010) (“Plaintiff, as the prevailing litigant, would normally be awarded the 20 fees described above, subject to any offset for applicable government debts. Defendant, 21 however, seems to be content to permit payment to Plaintiff’s counsel if Plaintiff does not 22 have any qualifying government debt . . . . This Court finds the government’s position to 23 be reasonable and will therefore permit payment to Plaintiff’s counsel provided Plaintiff 24 has no government debt that requires offset”). 25 Here, Plaintiff assigned his right to EAJA fees to his attorney. ECF No. 18-1; see 26 also ECF No 18-5. Accordingly, if Plaintiff has no federal debt that is subject to offset, the 27 award of fees and costs may be paid directly to his attorney, Lisa Mouradian, pursuant to 28 the assignment. 1 ||IV. CONCLUSION 2 Accordingly, for the reasons set forth above, the Court hereby ORDERS that: 3 1. The parties’ Joint Motion for the Award and Payment of Attorney Fees and 4 Expenses Pursuant to the Equal Access to Justice Act (ECF No. 18) is GRANTED; 5 2. Plaintiff is awarded attorney fees under the EAJA in the amount of $2,865.13; 6 7 3. Pursuant to Astrue v. Ratliff,

, 588—89 (2010), any payment shall 8 ||be made payable to Plaintiff and delivered to Plaintiff's counsel, unless Plaintiff does not 9 a federal debt. If the United States Department of the Treasury determines that Plaintiff 10 not owe a federal debt, the government shall accept Plaintiff's assignment of EAJA 11 and pay fees directly to Plaintiff’s counsel, Lisa Mouradian. 12 13 IT IS SO ORDERED. 14 Dated: May 5, 2023 15 _ Apion. Honorable Allison H. Goddard 16 United States Magistrate Judge 17 18 19 20 21 22 23 24 25 26 27 28