Randall v. Kijakazi

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DONNELL R., Case No.: 3:21-cv-01189-RBM-MDD 12 Plaintiff, ORDER GRANTING JOINT 13 v. MOTION FOR AWARD OF FEES UNDER THE EQUAL ACCESS TO 14 KILOLO KIJAKAZI, Acting JUSTICE ACT Commissioner of the Social Security 15 Administration, 16 Defendant. [Doc. 21] 17 18 19 20 On June 29, 2021, Plaintiff Donnell Randall (“Plaintiff”) filed a complaint against 21 Kilolo Kijakazi in her capacity as Acting Commissioner of the Social Security 22 Administration (“Commissioner”),1 seeking judicial review of the Commissioner’s 23 decision denying his application for Supplemental Security Income benefits. (Doc. 1.) On 24 April 21, 2022, the parties jointly moved to remand the action to the Social Security 25 Administration for further proceedings pursuant to sentence four of 42 U.S.C. § 405(g). 26 27 1 Kilolo Kijakazi became the Acting Commissioner of Social Security on July 9, 2021 and is therefore substituted for Andrew M. Saul as Defendant. See 42 U.S.C. § 405(g); FED. 28 1 (Doc. 16.) On May 5, 2022, the Court granted the motion and remanded the action for 2 further administrative proceedings. (Doc. 17.) 3 On August 2, 2022, the parties filed a joint motion for the award and payment of 4 attorney’s fees (“Joint Motion”) pursuant to the Equal Access to Justice Act, 28 U.S.C. 5 § 2412(d) (“EAJA”), which was denied without prejudice for failure to attach an itemized 6 statement as required under Section 2412(d)(1)(B). (Docs. 19, 20.) The parties now renew 7 their Joint Motion and move for an award to Plaintiff of attorney’s fees in the amount of 8 eight thousand and five hundred dollars and no cents ($8,500) under the EAJA. (Doc. 21 9 at 2.) In their Joint Motion, the parties state this amount represents compensation for all 10 legal services rendered on behalf of Plaintiff by counsel in connection with this civil action, 11 in accordance with 28 U.S.C. § 2412(d). (Id.) 12 The EAJA allows a prevailing party to seek attorney’s fees from the United States 13 within thirty days of final judgment. See 28 U.S.C. § 2412(d). “A plaintiff who obtains a 14 sentence four remand is considered a prevailing party for purposes of attorneys’ fees.” 15 Akopyan v. Barnhart, 296 F.3d 852, 854 (9th Cir. 2002) (citation omitted). Therefore, 16 Plaintiff is the prevailing party in this action for purposes of awarding attorney’s fees. 17 “A sentence four remand becomes a final judgment, for purposes of attorneys’ fees 18 claims brought pursuant to the EAJA, 28 U.S.C. § 2412(d), upon expiration of the time for 19 appeal.” Id. (citation omitted). Federal Rule of Appellate Procedure 4(a)(1)(B) provides 20 for a sixty-day appeal period in cases in which the United States is a party or a United 21 States officer or employee is sued in an official capacity. FED. R. APP. P. 4(a)(1)(B). Here, 22 the sixty-day appeal period for the May 5, 2022 order granting the parties’ joint motion to 23 remand expired on or about July 5, 2022. The sentence four remand is now a final 24 judgment and the parties’ Joint Motion is timely.2 25 26 27 2 The parties’ initial Joint Motion filed August 2, 2022 will be considered for purposes of 28 1 Pursuant to the EAJA, the amount of fees awarded are “based upon prevailing 2 market rates for the kind and quality of the services furnished.” See 28 U.S.C. 3 § 2412(d)(2)(A). “[A]ttorney fees shall not be awarded in excess of $125.00 per hour 4 unless the court determines that an increase in the cost of living or a special factor, such as 5 the limited availability of qualified attorneys for the proceedings involved, justifies a higher 6 fee.” 28 U.S.C. § 2412(d)(2)(A)(ii). The Ninth Circuit’s statutory maximum hourly rates 7 under the EAJA for 2021, adjusted for increases in the cost of living, are $217.54. See 8 “Statutory Maximum Rates Under the Equal Access to Justice Act,” 9 https://www.ca9.uscourts.gov/attorneys/statutory-maximum-rates/ (last visited Aug. 11, 10 2022) (citing 28 U.S.C. § 2412 (d)(2)(A); Thangaraja v. Gonzales, 428 F.3d 870, 876–77 11 (9th Cir. 2005); Ninth Circuit Rule 39–1.6).3 12 At an hourly rate of $217.54, the requested fee award represents compensation for 13 approximately 40.7 hours of work performed by Plaintiff’s counsel. (Docs. 21-2, 21-3, 21- 14 4, 21-5). The work was performed by three attorneys working with Legal Aid Society of 15 San Diego, Inc. (See Doc. 21-3 ¶ 5). In total, 40.7 hours were spent working on this case 16 at the district court level, resulting in $8,853 in fees at the rate of $217.54 per hour, but 17 Plaintiff and Defendant are jointly moving for a total of only $8,500 in fees. (Id.) Work 18 performed by Plaintiff’s counsel consists of reviewing the case, filing a complaint, 19 communicating with Plaintiff, and preparing the joint motion to remand, among other 20 things. (Doc. 21-2.) “Time entries for training activities, excessive activities, duplicative 21 entries, and entries for work performed before the applicable time period (i.e., from the 22 preparation of the initial application to the receipt of the Appeals Council denial) were 23 stricken from this request.” (Doc. 21-3 ¶ 5.) Having reviewed the parties’ Joint Motion 24 and relevant authority, the Court finds the request for attorney’s fees reasonable. 25 26 3 The Joint Motion states: “Legal Aid’s hourly rate for attorney work is the EAJA 27 statutory rate of $217.54 for 2021 and 2022. At the time of the agreement to jointly remand, the Ninth Circuit had not yet updated its EAJA fees for the first half of 2022, so 28 l Good cause appearing, the Joint Motion (Doc. 21) is GRANTED, subject to the 2 terms of the parties’ Joint Motion. Accordingly, the Court AWARDS Plaintiff attorney’s 3 || fees in the amount of eight thousand and five hundred dollars and no cents ($8,500). 4 IT IS SO ORDERED. 5 ||DATE: August 11, 2022 _ Fer terra Mitac 7 HON. RUTH BERMUDEZ MONTENEGRO UNITED STATES DISTRICT JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28