1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 JAMES F., Case No. 21-cv-08392-JSC

8 Plaintiff,

ORDER RE: PLAINTIFF’S MOTION

9 v. FOR EAJA FEES

10 KILOLO KIJAKAZI, Re: Dkt. No. 28 Defendant. 11

12 13 In this Social Security case, Plaintiff seeks attorney’s fees under the Equal Access to 14 Justice Act (“EAJA”) following the parties’ stipulation to remand this action for further 15 proceedings under 42 U.S.C. § 405(g). (Dkt. No. 26.1) Plaintiff requests the Court award his 16 reasonable attorney’s fees in the amount of $11,051.39. The Commissioner has not filed a 17 response to Plaintiff’s motion and the time to do so has run. See N.D. Cal. Civ. L.R. 7-3(a). 18 Having carefully considered the motion and the record in this case, the Court determines oral 19 argument is unnecessary, see N.D. Cal. Civ. L.R. 7-1(b), and GRANTS Plaintiff’s motion. 20 BACKGROUND 21 This case stems from Plaintiff’s appeal of the Social Security Administration’s (“SSA”) 22 denial of his application for disability benefits for ischemic heart disease, chronic joint pain 23 associated with psoriatic arthritis, severe stenosis and degeneration in his cervical spine, and a 24 non-surgically fused left wrist. Plaintiff filed his motion for summary judgment on July 31, 2022. 25 (Dkt. No. 21.) The government did not file an opposition brief, and instead, stipulated to a 26 voluntary remand under § 405(g), sentence four. (Dkt. No. 26.) Plaintiff thereafter filed the 27 1 underlying motion for EAJA fees in the amount of $11,051.39. (Dkt. No. 28.) 2 DISCUSSION 3 Under the EAJA, a court shall award a prevailing party its fees and expenses in an action 4 against the United States unless “the position of the United States was substantially justified or 5 special circumstances make an award unjust.” 28 U.S.C. § 2412(d)(1)(A). If the government’s 6 position was not substantially justified, then the plaintiff may be eligible for an award of fees 7 under the EAJA; however, eligibility is not an automatic award. Atkins v. Apfel, 154 F.3d 986, 989 8 (9th Cir. 1998). Rather, the plaintiff must prove the fees sought are reasonable. Sorenson v. Mink, 9 239 F.3d 1140, 1145 (9th Cir. 2001) (“The burden is on the plaintiff to produce evidence that the 10 requested rates are in line with those prevailing in the community for similar services by lawyers 11 of reasonably comparable skill, experience, and reputation.”) (internal quotation marks omitted). 12 A. Substantial Justification 13 The Supreme Court has defined “substantially justified” as “justified in substance or in the 14 main–that is, justified to a degree that could satisfy a reasonable person,” or having a “reasonable 15 basis both in law and fact.” Pierce v. Underwood, 487 U.S. 552, 565 (1988). “The language of the 16 EAJA creates a presumption in favor of awarding attorneys’ fees, and therefore the burden of 17 establishing substantial justification is placed with the government.” Campos v. Colvin, No. 13- 18 CV-03327, 2015 WL 2266692, at *1 (N.D. Cal. May 14, 2015); Gutierrez v. Barnhart, 274 F.3d 19 1255, 1258 (9th Cir. 2001) (the government bears the burden of showing its position was 20 substantially justified under EAJA). 21 “A plaintiff who obtains a sentence four remand” under 42 U.S.C. § 405(g), even when 22 further administrative review is ordered as here, “is considered a prevailing party for purposes of 23 attorneys’ fees.” Akopyan v. Barnhart, 296 F.3d 852, 854 (9th Cir. 2002) (citing Schalala v. 24 Schaefer, 509 U.S. 292, 297–98, 301–02 (1993)). Further, the government has not met its burden 25 of demonstrating its position here was substantially justified. First, by stipulating to remand under 26 Section 405(g), the government has conceded the position it advanced in its Answer did not have a 27 reasonable basis in law or fact, and Plaintiff was entitled to a new hearing based at least in part on 1 oppose Plaintiff’s motion for EAJA fees and thus has not met its burden of establishing substantial 2 justification. See 28 U.S.C. § 2412(d)(1)(B); Scarborough v. Principi, 541 U.S. 401, 414 (2004). 3 B. Reasonableness of Fee Requested 4 In establishing the reasonableness of fees and expenses under EAJA, it is Plaintiff’s burden 5 to document “the appropriate hours expended in the litigation by submitting evidence in support of 6 those hours worked.” Gates v. Deukmejian, 987 F.2d 1392, 1397 (9th Cir. 1992). The starting 7 point for determining whether a fee is reasonable is “the number of hours reasonably expended on 8 the litigation multiplied by a reasonable hourly rate.” Hensley v. Eckerhart, 461 U.S. 424, 433 9 (1983). The applicant must exercise “billing judgment,” i.e., the fees must be for services for 10 which a private client would pay. Id. at 434 (“Hours that are not properly billed to one’s client also 11 are not properly billed to one’s adversary pursuant to statutory authority.”). Courts should 12 generally “defer to the winning lawyer’s professional judgment as to how much time he was 13 required to spend on the case.” Moreno v. City of Sacramento, 534 F.3d 1106, 1112 (9th Cir. 14 2008). An applicant may be awarded fees for hours spent litigating an EAJA fee award. INS v. 15 Jean, 496 U.S. 154, 162 (1990). 16 Here, Plaintiff submits a declaration from his attorney, Jared Walker, attesting that Mr. 17 Walker spent 47.24 hours litigating this action and breaking down the time sought into separate 18 billing entries. (Dkt. No. 29-2.) Plaintiff seeks the statutory maximum hourly rate for social 19 security attorneys in the Ninth Circuit Court of Appeals: $217.54 for work done in 2021 and 20 $234.95 for work done in 2022. (Dkt. No. 29 at ¶ 2 (citing table set forth at: 21 https://www.ca9.uscourts.gov/attorneys/statutory-maximum-rates/ (last viewed on Feb. 13, 2023); 22 28 U.S.C. § 2412(d)(2)(A); Thangaraja v. Gonzales, 428 F.3D 870, 876-77 (9th Cir. 2005) and 23 Ninth Circuit Rule 39-1.6.).) 24 The Ninth Circuit has held it is “an abuse of discretion to apply a de facto policy limiting 25 social security claimants to twenty to forty hours of attorney time in ‘routine’ cases.” Costa v. 26 Comm. of Soc. Sec. Admin., 690 F.3d 1132, 1137 (9th Cir. 2012) (holding courts should consider 27 factors such as the complexity of legal issues, the procedural history, the size of the record, and 1 issues as well as oftentimes a voluminous administrative record. This case was no exception. The 2 administrative record totaled over 1700 pages and Plaintiff’s brief raised three substantive legal 3 issues each of which raised numerous arguments. Under these circumstances, the Court finds the 4 || 47.24 hours spent by Plaintiff's counsel preparing the briefing which led the government to agree 5 to a voluntary remand under Section 405(g) was reasonable. 6 Accordingly, Plaintiff is entitled to $11,051.39 in attorney’s fees. 7 CONCLUSION 8 For the reasons stated above, Plaintiff's motion for an award of attorney’s fees pursuant to 9 || the EAJA is GRANTED. Plaintiff is awarded $11,051.39 in attorney’s fees. The award should be 10 || paid directly to Plaintiff's counsel, The Law Offices of Jared T. Walker. 11 This Order disposes of Docket No. 28.

13 IT IS SO ORDERED. || Dated: February 13, 2023

16 ne 5 CQUELINE SCOTT CORL nited States District Judge 18 19 20 21 22 23 24 25 26 27 28