Hidalgo v. Kijakazi

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ERYBERTO H., Case No.: 20-cv-02427-JLB 12 Plaintiff, ORDER GRANTING JOINT 13 v. MOTION FOR THE AWARD AND PAYMENT OF ATTORNEY FEES 14 KILOLO KIJAKAZI, Acting AND EXPENSES PURSUANT TO Commissioner of Social Security, 15 THE EQUAL ACCESS TO JUSTICE Defendant. ACT, 28 U.S.C. § 2412(d), AND 16 COSTS PURSUANT TO 28 U.S.C. § 17 1920 18 [ECF No. 17] 19 20 21 On December 11, 2020, Eryberto H. (“Plaintiff”) filed a complaint seeking judicial 22 review of the denial of his applications for social security disability benefits and 23 supplemental security income benefits by the Commissioner of Social Security (the 24 “Commissioner”). (ECF No. 1.) The Commissioner filed the administrative record on 25 June 1, 2021. (ECF No. 10.) On August 11, 2011, Plaintiff filed a merits brief. (ECF No. 26 13.) 27 The parties filed a joint motion for voluntary remand pursuant to sentence four of 28 42 U.S.C. § 405(g) and entry of judgment on September 10, 2021. (ECF No. 14.) On 1 September 14, 2021, the Court granted the joint motion and remanded the matter for further 2 administrative proceedings pursuant to sentence four of 42 U.S.C. § 405(g), and judgment 3 was entered. (ECF Nos. 15, 16.) 4 Now before the Court is a joint motion for the award and payment of attorney fees 5 and expenses pursuant to the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d), 6 and costs pursuant to 28 U.S.C. § 1920. (ECF No. 17.) The parties jointly ask the Court 7 to award Plaintiff attorney fees and expenses in the amount of $4,600.00. (Id. at 1.) This 8 amount represents compensation for all legal services rendered on behalf of Plaintiff by 9 counsel in connection with this action. (Id.) 10 A litigant is entitled to attorney’s fees under the EAJA if: “(1) he is the prevailing 11 party; (2) the government fails to show that its position was substantially justified or that 12 special circumstances make an award unjust; and (3) the requested fees and costs are 13 reasonable.” Carbonell v. I.N.S., 429 F.3d 894, 898 (9th Cir. 2005) (citing Perez–Arellano 14 v. Smith, 279 F.3d 791, 793 (9th Cir. 2002)); see also 28 U.S.C. § 2412(d)(1)(A). “A 15 plaintiff who obtains a sentence four remand” under 42 U.S.C. § 405(g), even when further 16 administrative review is ordered, “is considered a prevailing party for purposes of 17 attorneys’ fees.” Akopyan v. Barnhart, 296 F.3d 852, 854 (9th Cir. 2002) (citing Schalala 18 v. Schaefer, 509 U.S. 292, 297–98, 301–02 (1993)). 19 The prevailing party is eligible to seek attorney’s fees within thirty days of final 20 judgment in the action. 28 U.S.C. § 2412(d)(1)(B). “A sentence four remand becomes a 21 final judgment, for purposes of attorneys’ fees claims brought pursuant to the EAJA, upon 22 expiration of the time for appeal.” Akopyan, 296 F.3d at 854 (citation omitted) (citing 23 Schaefer, 509 U.S. at 297). Under Federal Rule of Appellate Procedure 4(a)(1)(B), the 24 time for appeal expires sixty days after entry of judgment if one of the parties is a 25 United States officer sued in an official capacity. Therefore, a motion for attorney’s fees 26 filed after a sentence four remand is timely if filed within thirty days after Rule 4(a)’s sixty- 27 day appeal period has expired. Hoa Hong Van v. Barnhart, 483 F.3d 600, 602 (9th Cir. 28 2007). 1 Here, the Court finds that the parties’ joint motion is timely, Plaintiff is the prevailing 2 || party in this action, the Commissioner has not met her burden of showing her position was 3 ||substantially justified or that special circumstances make an award unjust, and the 4 || stipulated amount of fees is reasonable.' Accordingly, the Court GRANTS the parties’ 5 motion and AWARDS Plaintiff $4,600.00 pursuant to the EAJA. 6 IT IS SO ORDERED. 7 Dated: November 19, 2021 8 bandit 9 n. Jill L. Burkhardt 10 ited States Magistrate Judge 11 12 13 14 15 16 17 18 19 20 21 ||! Counsel’s hourly rates are in line with the Ninth Circuit’s EAJA hourly rate. (ECF 99 No. 17-2.) Plaintiff’s counsel billed 1.02 hours in 2020 at an hourly rate of $207.78, and 18.26 hours in 2021 at an hourly rate of $213.74. Ud.) The Ninth Circuit’s EAJA hourly 23 ||rate was $207.78 for work performed in 2020 and $213.74 for work performed in the first half of 2021. See Statutory Maximum Rates Under the EAJA, U.S. Courts for the Ninth Circuit, https://www.ca9.uscourts.gov/content/view.php?pk_id=0000000039 (last visited 25 ||November 19, 2021). The paralegal rate of $143.00 is also consistent with the median hourly rate for paralegals in San Diego. See Nadarajah v. Holder, 569 F.3d 906, 918 (9th 6 Cir. 2009) (courts may approve paralegal rates at prevailing market rates); Roland S. v. 27 ||Saul, No. 3:20-CV-01068-AHG, 2021 WL 4081567, at *3 (S.D. Cal. Sept. 7, 2021) 28 (finding an hourly rate of $143 for work done by a paralegal in 2020 and 2021 in the San Diego area to be reasonable based on the prevailing market rate).