1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 BRIAN O.,1 Case No.: 22cv1652-LR

12 Plaintiff, ORDER GRANTING JOINT 13 v. MOTION FOR THE AWARD AND PAYMENT OF ATTORNEY FEES 14 MARTIN O’MALLEY, PURSUANT TO THE EQUAL Acting Commissioner of Social Security 15 ACCESS TO JUSTICE ACT, 28 Defendant. U.S.C. § 2412(d) 16

17 [ECF No. 20]

18 On October 25, 2022, Plaintiff Brian O. filed a complaint against the 19 Commissioner of the Social Security Administration (“Defendant”), seeking judicial 20 review of Defendant’s decision to deny Plaintiff disability insurance benefits. (See 21 Compl., ECF No. 1.) On March 28, 2024, the Court issued an order granting Plaintiff’s 22 merits brief and remanding for further administrative proceedings. (See ECF No. 18.) 23 Now pending before the Court is a joint motion to award Plaintiff attorney fees in 24 the amount of $5,435.11 under the Equal Access to Justice Act (“EAJA”),

26

27 1 In the interest of privacy, this Order uses only the first name and initial of the last name of the non- 28 1 2412, (“Joint Motion”) and supplemental briefing regarding the Joint Motion. (See ECF 2 No. 20 (“Joint Mot.”), 22 (“Suppl. Br.”).) The Joint Motion is a stipulation between the 3 parties with respect to Plaintiff’s attorney fees, and is unopposed. (See Suppl. Br. at 1.) 4 For the reasons stated below, the Court GRANTS the Joint Motion and awards Plaintiff 5 attorney fees of $5,435.11. 6 I. DISCUSSION 7 A. Applicable Law 8 A litigant is entitled to attorney fees and costs under the EAJA if: “(1) he is the 9 prevailing party; (2) the government fails to show that its position was substantially 10 justified or that special circumstances make an award unjust; and (3) the requested fees 11 and costs are reasonable.” Carbonell v. I.N.S.,

(9th Cir. 2005); see 12 also

(a), (d). The Court addresses these elements in turn below. 13 B. Prevailing Party 14 A plaintiff is a prevailing party if he or she “has ‘succeeded on any significant 15 issue in litigation which achieve[d] some of the benefit . . . sought in bringing suit.’” 16 Ulugalu v. Berryhill, Case No. 3:17-cv-01087-GPC-JLB,

, at *2 (S.D. 17 Cal. Apr. 30, 2018) (quoting Shalala v. Schaefer,

(1993)). Here, there 18 is no doubt that Plaintiff is the prevailing party—he demonstrated that the administrative 19 law judge improperly considered medical opinion evidence in the record and successfully 20 moved to remand the instant matter to the Social Security Administration for further 21 development of the record. (See ECF No. 18 at 23-24.) 22 C. Substantial Justification and Special Circumstances 23 The government bears the burden of proving that its position, both in the 24 underlying administrative proceedings and in the subsequent litigation, was substantially 25 justified under

(d)(1)(A). See Meier v. Colvin,

(9th 26 Cir. 2013). The Supreme Court has held that a position may be substantially justified “if 27 it has a reasonable basis in law and fact.” Pierce v. Underwood,

, 566 n.2 28 (1988). When determining whether the government’s position was substantially justified, 1 the court considered “both the government’s litigation position and the underlying agency 2 action giving rise to the civil action.” Meier v. Colvin,

(9th Cir. 2013). 3 The government’s position must be “as a whole, substantially justified.” Gutierrez v. 4 Barnhart,

(9th Cir. 2001) (emphasis omitted). “[D]istrict courts 5 should focus on whether the government’s position on the particular issue on which the 6 claimant earned remand was substantially justified, not on whether the government’s 7 ultimate disability determination was substantially justified.” Hardisty v. Astrue, 592

(9th Cir. 2010) (citing Flores v. Shalala,

(9th Cir. 9 1990)). 10 Defendant has not carried the burden of demonstrating that the Government’s 11 position was substantially justified or that an award of attorney fees under the 12 circumstances would be unjust. See

Defendant effectively concedes that the 13 Government’s litigation position had no reasonable basis in law or fact, and that there are 14 no special circumstances that would make the award of attorney fees here unjust. 15 Accordingly, the Court finds no basis to deny the EAJA fee request pursuant to § 16 2412(d)(1)(A). 17 D. Whether the Amount Sought is Reasonable 18 The EAJA provides that courts may award reasonable attorney fees “based upon 19 prevailing market rates for the kind and quality of the services furnished.”

2412(d)(2)(A). Additionally, courts generally defer to the winning lawyer’s professional 21 judgment as to how much time was required to complete the litigation. See, e.g., Costa v. 22 Comm’r of Soc. Sec. Admin.,

(9th Cir. 2012) (“‘lawyers are not 23 likely to spend unnecessary time on contingency fee cases in the hope of inflating their 24 fees’ because ‘the payoff is too uncertain.’ []As a result, courts should generally defer to 25 the ‘winning lawyer’s professional judgment as to how much time he was required to 26 spend on the case.’”) (quoting Moreno v. City of Sacramento,

, 1112-13 27 (9th Cir. 2008)); see also

(“[m]any district courts have noted that twenty to 28 forty hours is the range most often requested and granted in social security cases”); Krebs 1 v. Berryhill, No. 16-cv-3096-JLS-BGS,

, at *2 (S.D. Cal. June 21, 2 2018) (finding that 21.7 hours billed by plaintiff’s counsel and 3.5 hours billed by a 3 paralegal a reasonable number of hours). 4 Here, the parties have reached an agreement as to the amount of fees, and 5 presumably stipulate to their reasonableness. (See Suppl. Br. at 1-2.) The Court concurs 6 with this stipulation.2 Per Plaintiff’s retainer agreement attached to the parties’ joint 7 motion, Plaintiff’s counsel was entitled to receive up to twenty-five percent of Plaintiff’s 8 past due benefits if the litigation was successful. (See ECF No. 22-3.) Additionally, the 9 joint motion stipulates to making the fees payable to Plaintiff to be assigned to his 10 attorney and addresses offsets allowed under the US Department of the Treasury’s Offset 11 Program (see Joint Mot. at 2), as well as that “Fees and expenses shall be made payable 12 to Plaintiff, but if the Department of the Treasury determines that Plaintiff does not owe a 13 federal debt, then the government shall cause the payment of fees and expenses to be 14 made directly to Plaintiff’s counsel, William M. Kuntz, Esq., pursuant to the assignment 15 executed by Plaintiff.” (Id.) Given that the parties have compromised to these additional 16 terms, the Court concludes that they are also reasonable. 17 / / / 18 / / / 19 / / / 20 / / / 21 / / / 22 / / / 23 / / / 24 / / / 25 26 27 2 The itemized list of fees from Plaintiff’s counsel, which notes 22 hours and 15 minutes hours of billed attorney time, totaling $5,435.11, is reasonable when compared with the hourly rates listed by Plaintiff’s 28 1 I. CONCLUSION AND ORDER 2 The Court concludes that Plaintiff is entitled to fees in this case and the parties’ 3 requested fees and terms are reasonable. The Court accordingly GRANTS the joint 4 motion (ECF No. 20), and awards Plaintiff attorney fees in the amount of five thousand, 5 ||four hundred, and thirty five dollars and eleven cents ($5,435.11), as authorized by 28 6 || U.S.C. § 2412(d), subject to the terms of the joint motion. 7 IT IS SO ORDERED. 8 ||Dated: August 12, 2024 9 10 / L I] Honorable Lupe Rodriguez, Jr. 12 United States Magistrate Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28