1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DORA R.S., Case No.: 23-cv-00636-AJB-SBC

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

17 (Doc. No. 20)

18 Presently before the Court is the parties’ renewed joint motion for attorney’s fees 19 pursuant to the Equal Access to Justice Act (“EAJA”),

(d). (Doc. No. 20.) 20 The Court decides the matter without oral argument pursuant to Civil Local Rule 7.1(d)(1). 21 For the reasons set forth, the Court GRANTS the joint motion. 22 I. BACKGROUND 23 On April 7, 2023, Plaintiff filed a complaint, seeking judicial review of the 24 Commissioner’s decision to deny her claim for benefits. (Doc. No. 1.) Thereafter, Plaintiff 25 filed a First Amended Complaint. (Doc. No. 8.) The Court issued a Scheduling Order 26 setting a briefing schedule for judicial review of the Commissioner’s Final Decision. (Doc. 27 28 1 No. 10.) Thereafter, Plaintiff filed her motion for summary judgment, (Doc. No. 13), to 2 which the Commissioner responded, (Doc. No. 15) 3 Magistrate Judge Steve B. Chu filed a Report and Recommendation (“R&R”) on 4 July 22, 2024, recommending that the Commissioner’s decision be vacated, and the action 5 be remanded for further administrative proceedings. (Doc. No. 16.) Upon review of the 6 R&R and receiving no objections from the parties, the Court adopted Magistrate Judge 7 Chu’s R&R in its entirety. (Doc. No. 17.) 8 The parties now move for an award of $6,971.67 in fees pursuant to 42 U.S.C. 9 § 406(b), and no costs. (Doc. No. 20.) 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 original attorney fees motion on September 10, 2024, 27 22 days after final judgment was filed on August 14, 2024. Therefore, the motion before the 23 Court may seem premature since it was filed before the end of the 60-day appeal period. 24 See Auke Bay Concerned Citizen’s Advisory Council v. Marsh,

, 1393 (9th 25 Cir. 1986) (“Section 2412(d)(1)(B) establishes a clear date after which applications for 26 attorney fees must be rejected as untimely; 30 days after final judgment. The statute is less 27 clear about a 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) [s]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 she “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 28.5 hours billed by Plaintiff’s counsel. (Doc. 13 No. 20-1 at 1.) The counsel’s hours are reasonable in light of Plaintiff’s results in the case. 14 See Hensley v. Eckerhart,

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

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

, at 19 *1 (D. Ariz. Aug. 29, 2014) (finding 39 hours billed by plaintiff’s counsel a reasonable 20 number of hours); Stearns v. Colvin, No. 3:14-CV-05611 JRC,

, at *5 21 (W.D. Wash. Feb. 24, 2016) (collecting cases to establish that the typical number of hours 22 reported for counsel in a social security case ranged from 18–40 hours); Guzman v. Comm’r 23 of Soc. Sec., No. 2:20-CV-0468-KJN,

, at *4 (E.D. Cal. June 21, 2021) 24 (finding a total of 38 hours for counsel spent prosecuting the Social Security appeal to be 25 reasonable in a case where, as here, the parties agreed to a sentence-four remand). Notably, 26 this case was resolved in Plaintiff’s favor. See Costa,

(“Many district 27 courts have noted that twenty to forty hours is the range most often requested and granted 28 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 October 4, 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). Here, Plaintiff applies the 2023 EAJA rate of $244.62 21 to the work done in 2023 and 2024. (Doc. No. 20-1 at 1.) As such, the Court finds the 22 hourly rate billed by counsel is reasonable. 23 E. Assignment of Rights to Counsel 24 The parties state that “[a]fter the Court issues an order of EAJA fees to Plaintiff, the 25 government will consider the matter of Plaintiff’s assignment for EAJA fees to Plaintiff’s 26 attorney[,]” Justin Prato. (Doc. No. 20 at 2.) This request is consistent with the governing 27 law that a fee award may be paid directly to a litigant’s attorney “where there has been a 28 valid assignment and the plaintiff does not owe a debt to the government.” Ulugalu, 2018 1 || WL 2012330, at *4—*5 (reviewing the plaintiff's assignment agreement and ordering that 2 ||the EAJA fees be paid to plaintiff's counsel, subject to any administrative offset due to 3 || outstanding federal debt); see also Bell v. Berryhill, No. 16cv809-MMC,

, 4 |lat *5 (N.D. Cal. Jan. 17, 2018) (same); Blackwell v. Astrue, No. CIV-08-1454-EFB, 2011 5 || WL 1077765, at *4—*5 (E.D. Cal. Mar. 21, 2011) (same). 6 However, the parties here have not provided the relevant assignment agreement to 7 ||the Court. Therefore, the Court will not order the payment of fees and costs to be made 8 directly to Plaintiff's counsel. See Hernandez v. Berryhill, No. 15cv1322-DB,

2930802, at *3 (E.D. Cal. July 10, 2017) (declining to order that the EAJA fees be paid to 10 plaintiff's counsel, subject to any administrative offset due to outstanding federal debt, 11 || because the parties failed to produce evidence of an assignment agreement). 12 ||IV. CONCLUSION 13 Based on the foregoing, the Court hereby ORDERS that: 14 1. The parties’ Joint Motion for the Award of Attorney Fees Under the Equal 15 || Access to Justice Act (Doc. No. 20) is GRANTED; 16 2. Plaintiff is awarded attorney fees under the EAJA in the amount of $6,971.67; 17 || and 18 3. The award BE MADE directly to Plaintiff, the prevailing party. 19 20 IT IS SO ORDERED. 21 Dated: October 7, 2024 © ¢ 22 Hon, Anthony J.Battaglia 23 United States District Judge 24 25 26 27 28