1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 EDWARD C., Case No.: 23-cv-01170-AJB-KSC Plaintiff, 12 ORDER GRANTING JOINT MOTION v. FOR ATTORNEY’S FEES PURSUANT 13 TO THE EQUAL ACCESS TO MARTIN J. O’MALLEY, Commissioner 14 JUSTICE ACT of Social Security,1

15 Defendant. (Doc. No. 17) 16 17 Presently before the Court is the parties’ joint motion for attorney’s fees pursuant to 18 the Equal Access to Justice Act (“EAJA”),

(d). (Doc. No. 17.) The Court 19 decides the matter without oral argument pursuant to Civil Local Rule 7.1(d)(1). For the 20 reasons set forth, the Court GRANTS the joint motion. 21 I. BACKGROUND 22 On June 25, 2023, Plaintiff filed a complaint, seeking judicial review of the 23 Commissioner’s decision to deny his claim for benefits. (Doc. No. 1.) After the 24 Commissioner filed the administrative record, the Court issued a Scheduling Order setting 25 a briefing schedule for judicial review of the Commissioner’s Final Decision. (Doc. Nos. 26

27 1 Pursuant to Federal Rule of Civil Procedure 25(d), Commissioner O’Malley is automatically substituted 28 1 8–9.) Thereafter, Plaintiff filed his opening brief, (Doc. No. 11), to which the 2 Commissioner responded, (Doc. No. 13), and Plaintiff replied, (Doc. No. 14). 3 Magistrate Judge Karen S. Crawford filed a Report and Recommendation (“R&R”) 4 on July 3, 2024, recommending that the Commissioner’s decision be vacated, and the 5 action be remanded for further administrative proceedings. (Doc. No. 15.) Upon review of 6 the R&R and receiving no objections from the parties, the Court adopted Magistrate Judge 7 Crawford’s R&R in its entirety. (Doc. No. 16.) 8 The parties now move for an award of $7,346.84 in fees pursuant to 42 U.S.C. 9 § 406(b), and no costs. (Doc. No. 17.) This amount represents compensation for all legal 10 services rendered on behalf of Plaintiff by counsel in connection with this action. (Id.) 11 II. THRESHOLD ISSUE OF TIMELINESS 12 The prevailing party is eligible to seek attorney’s fees within thirty days of final 13 judgment in the action.

(d)(1)(B). “A sentence four remand becomes a 14 final judgment, for purposes of attorneys’ fees claims brought pursuant to the EAJA, upon 15 expiration of the time for appeal.” Akopyan v. Barnhart,

(9th Cir. 2002) 16 (internal citation omitted). Under Federal Rule of Appellate Procedure 4(a)(1)(B), the time 17 for appeal expires sixty days after entry of judgment if one of the parties is a United States 18 officer sued in an official capacity. Therefore, a motion for attorney’s fees filed after a 19 sentence four remand is timely if filed within thirty days after Rule 4(a)’s sixty-day appeal 20 period has expired. See Hoa Hong Van v. Barnhart,

, 611–12 (9th Cir. 2007). 21 Here, the parties filed the attorney fees motion on August 19, 2024, 47 days after 22 final judgment was filed on July 3, 2024. Therefore, the motion before the Court may seem 23 premature since it was filed before the end of the 60-day appeal period. See Auke Bay 24 Concerned Citizen’s Advisory Council v. Marsh,

, 1393 (9th Cir. 1986) 25 (“Section 2412(d)(1)(B) establishes a clear date after which applications for attorney fees 26 must be rejected as untimely; 30 days after final judgment. The statute is less clear about a 27 time before which applications must be rejected.”). 28 /// 1 However, even where the appeal period has not yet run, an application for EAJA 2 attorney fees is nonetheless timely “if (1) the applicant files no more than 30 days after 3 final judgment, and (2) the applicant is able to show that he or she ‘is a prevailing party 4 and is eligible to receive an award under this subsection.’” Id. (emphasis added) (quoting 5

(d)(1)(B)). Thus, an early application is timely where “a court order 6 substantially grants the applicant’s remedy before final judgment is entered” such that the 7 applicant is able to show that she has prevailed.

The Court finds these criteria are met 8 here, such that the joint motion for EAJA fees is timely. See Jalal H. v. Comm’r of Soc. 9 Sec., No.: 3:22-cv-02043-AHG,

, at *2 (S.D. Cal. May 5, 2023) (holding 10 the joint motion for the plaintiff’s EAJA fee was timely where motion was filed before the 11 60-day appeal period had run); Dickey v. Colvin, No. 14-CV-00629-WHO,

575986, at *3 (N.D. Cal. Feb. 10, 2015) (applying Auke Bay to conclude a plaintiff’s EAJA 13 fee motion was not premature in a Social Security case, although the motion was filed 14 before the 60-day appeal period had run, where the court had remanded for payment of 15 benefits rather than further proceedings). Here, the Court substantially granted Plaintiff’s 16 remedy before entry of final judgment by vacating the final decision of the Commissioner 17 denying Plaintiff’s application for benefits. (See Doc. Nos. 15, 16.) Therefore, the Court 18 finds the joint motion is timely. 19 III. DISCUSSION 20 A litigant is entitled to attorney’s fees and costs under the EAJA if: “(1) he is the 21 prevailing party; (2) the government fails to show that its position was substantially 22 justified or that special circumstances make an award unjust; and (3) the requested fees and 23 costs are reasonable.” Carbonell v. I.N.S.,

(9th Cir. 2005) (citing Perez– 24 Arellano v. Smith,

(9th Cir. 2002)); see also

(d)(1)(A). 25 A. Prevailing Party 26 A plaintiff is a prevailing party if he “has ‘succeeded on any significant issue in 27 litigation which achieve[d] some of the benefit . . . sought in bringing suit.’” Ulugalu v. 28 Berryhill, No. 17cv1087-GPC-JLB,

, at *2 (S.D. Cal. Apr. 30, 2018) 1 (quoting Schalala v. Schaefer,

(1993)). Here, as discussed above, 2 Plaintiff is the prevailing party because the Court vacated the decision of the Commissioner 3 and remanded the matter. 4 B. Substantial Justification 5 Next, the Commissioner makes no argument that his position was substantially 6 justified. See Meier v. Colvin,

(9th Cir. 2013) (“It is the government’s 7 burden to show that its position was substantially justified.”). Rather, the instant fee request 8 comes to the Court by way of a joint motion. (See Doc. No. 17.) Accordingly, the 9 Commissioner has not met his burden of showing his position was substantially justified 10 or that special circumstances make an award unjust. 11 C. Reasonableness of Hours 12 Next, the parties seek a fee award for 29.6 hours billed by Plaintiff’s counsel and 2.7 13 hours billed by counsel’s legal assistant. (Doc. No. 17-1 at 1–2.) The counsel’s hours are 14 reasonable in light of Plaintiff’s results in the case. See Hensley v. Eckerhart,

, 15 435 (1983) (“Where a plaintiff has obtained excellent results, his attorney should recover 16 a fully compensatory fee.”); Costa v. Comm’r of Soc. Sec. Admin.,

, 1136 17 (9th Cir. 2012) (noting “[m]any district courts have noted that twenty to forty hours is the 18 range most often requested and granted in social security cases”); Chavez v. Colvin, No. 19 CV-12-01124-PHX-DGC,

, at *1 (D. Ariz. Aug. 29, 2014) (finding 39 20 hours billed by plaintiff’s counsel a reasonable number of hours); Stearns v. Colvin, No. 21 3:14-CV-05611 JRC,

, at *5 (W.D. Wash. Feb. 24, 2016) (collecting 22 cases to establish that the typical number of hours reported for counsel in a social security 23 case ranged from 18–40 hours); Guzman v. Comm’r of Soc. Sec., No. 2:20-CV-0468-KJN, 24

, at *4 (E.D. Cal. June 21, 2021) (finding a total of 38 hours for counsel 25 spent prosecuting the Social Security appeal to be reasonable in a case where, as here, the 26 parties agreed to a sentence-four remand). Notably, this case was resolved in Plaintiff’s 27 favor. See Costa,

(“Many district courts have noted that twenty to forty 28 hours is the range most often requested and granted in social security cases.”). 1 Additionally, “courts should generally defer to the ‘winning lawyer’s professional 2 judgment as to how much time he was required to spend on the case.’”

(quoting Moreno 3 v. City of Sacramento,

, 1112–13 (9th Cir. 2008)). Therefore, the Court will 4 not question counsel’s judgment that the hours expended by Plaintiff’s counsel were 5 necessary to achieve a favorable result in this case. 6 D. Reasonableness of Hourly Rate 7 The EAJA provides 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 Ninth Circuit’s statutory maximum EAJA rate for work performed in 2023, factoring 13 in increases in the cost of living, is $244.62. See United States Courts for the Ninth Circuit, 14 Statutory Maximum Rates Under the Equal Access to Justice Act, 15 https://www.ca9.uscourts.gov/attorneys/statutory-maximum-rates/ (last visited August 20, 16 2024). There is not yet a published statutory rate for work performed in 2024, but, 17 consistent with the Ninth Circuit’s guidance, attorneys are directed to use the 2023 rate of 18 $244.62 for work done in 2024 in their billing records. See

(instructing attorneys to “use 19 the rate that is posted for the previous period” if no rate is posted for the period in which 20 the attorney’s work was performed). 21 While Plaintiff’s counsel uses a rate of $252.20 for attorney time in 2024, (Doc. No. 22 17-1 at 1), the Court declines to use this rate and instead applies the EAJA rate of $244.62 23 for work performed in 2024. Plaintiff’s counsel also requests an hourly rate of $110 for his 24 legal assistant. (Doc. No. 17-1 at 2.) Moreover, while Plaintiff’s initial requested amount 25 26 27 28 1 totaled $7,546.84, the parties request a total discounted amount of $7,346.84. (See Doc. 2 No. 17.) The Court finds this to be reasonable. 3 E. Assignment of Rights to Counsel 4 The parties jointly request that “[f]ees shall be made payable to Plaintiff, but if the 5 Department of the Treasury determines that Plaintiff does not owe a federal debt, then the 6 government shall cause the payment of fees, expenses and costs to be made directly to 7 Plaintiff’s attorney, Francesco Benavides, pursuant to the assignment executed by 8 Plaintiff.” (Doc. No. 17 at 2; see also Doc. No. 17-2 (agreement signed by Plaintiff stating, 9 “Claimant hereby assigns any and all rights to any attorney fees payable under the Equal 10 Access to Justice Act (EAJA) to her attorney, Francesco Benavides, and consents to the 11 payment of those fees directly to Francesco Benavides.”). 12 The Supreme Court has held that “a § 2412(d) fees award is payable to the litigant 13 and is therefore subject to a Government offset to satisfy a pre-existing debt that the litigant 14 owes the United States.” Astrue v. Ratliff,

, 588–89 (2010). Nonetheless, 15 “district courts have recognized that Ratliff does not prevent payment of a fee award 16 directly to the attorney where there has been a valid assignment and the plaintiff does not 17 owe a debt to the government.” Ulugalu,

, at *4–*5 (reviewing 18 plaintiff’s assignment agreement and ordering that the EAJA fees be paid to plaintiff’s 19 counsel, subject to any administrative offset due to outstanding federal debt); Bell v. 20 Berryhill, No. 16cv809-MMC,

, at *5 (N.D. Cal. Jan. 17, 2018) (same); 21 Blackwell v. Astrue, No. CIV-08-1454-EFB,

, at *4–*5 (E.D. Cal. Mar. 22 21, 2011) (same); Castaneda v. Astrue, No. EDCV-09-1850-OP,

, 2010

(C.D. Cal. Jul. 20, 2010) (same); see also Calderon v. Astrue, No. 24 08cv1015-GSA,

, at *8 (E.D. Cal. Oct. 21, 2010) (“Plaintiff, as the 25 prevailing litigant, would normally be awarded the fees described above, subject to any 26

27 2 Applying the EAJA rate of $244.62 to the 1.2 hours Plaintiff’s counsel billed in 2024, the amended total 28 | || offset for applicable government debts. Defendant, however, seems to be content to permit 2 || payment to Plaintiff's counsel if Plaintiff does not have any qualifying government debt . 3 ||... This Court finds the government’s position to be reasonable and will therefore permit 4 ||payment to Plaintiff's counsel provided Plaintiff has no government debt that requires 5 || offset’). 6 Here, Plaintiff assigned his right to EAJA fees to his attorney. (Doc. No. 17-2.) 7 || Accordingly, if Plaintiff has no federal debt that is subject to offset, the award of fees may 8 ||be paid directly to his counsel, Francesco Benavides, pursuant to the assignment 9 || agreement. 10 CONCLUSION 11 Based on the foregoing, the Court hereby ORDERS that: 12 1. The parties’ Joint Motion for the Award of Attorney Fees Under the Equal 13 || Access to Justice Act (Doc. No. 17) is GRANTED; 14 2. Plaintiff is awarded attorney fees under the EAJA in the amount of $7,346.84; 15 16 3. Pursuant to Astrue v. Ratliff,

(2010), any payment shall 17 || be made payable to Plaintiff and delivered to Plaintiff's counsel, unless Plaintiff does not 18 || owe a federal debt. If the United States Department of the Treasury determines that Plaintiff 19 || does not owe a federal debt, the government shall accept Plaintiff's assignment of EAJA 20 || fees and pay fees directly to Plaintiff's counsel. (See Doc. No. 17-2); see, e.g., Mendoza v. 21 Saul, No. 18cv925-SKO,

, at *5 (E.D. Cal. Jan 24, 2020). 22 23 IT IS SO ORDERED. 24 Dated: August 20, 2024 © □ 25 Hon. Anthony J. attaglia 26 United States District Judge 27 28