Villavisencio v. Saul

[3] 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN JOSE DIVISION [7] 8 M.V., Case No. 20-cv-06620-VKD 9 Plaintiff, ORDER GRANTING AS MODIFIED 10 v. PLAINTIFF’S MOTION FOR ATTORNEY’S FEES 11 KILOLO KIJAKAZI, Re: Dkt. No. 21 Defendant. [13] 14 Plaintiff M.V. appealed a final decision of the Commissioner of Social Security 15 (“Commissioner”) denying her application for disability insurance benefits and supplemental 16 security income under Titles II and XVI of the Social Security Act (“Act”), 42 U.S.C. §§ 423 , 17 1381, et seq. The sole issue presented concerned M.V.’s literacy. On January 24, 2022, the Court 18 granted M.V.’s motion for summary judgment, denied the Commissioner’s cross-motion for 19 summary judgment, remanded this matter for further development of the record, and entered 20 judgment accordingly. See Dkt. Nos. 19, 20. 21 M.V. now moves for an award of $4,070.14 for her attorney’s fees1 pursuant to the Equal 22 Access to Justice Act (“EAJA”), 28 U.S.C. § 2412 . Dkt. No. 21. The Commissioner did not file a 23 response, and the time for doing so has passed. Upon consideration of the moving papers, the 24 Court grants M.V.’s motion for fees, with some modification. 25 Eligibility for a fee award under the EAJA requires that (1) the party seeking fees is a 26 “prevailing party”; (2) the fee application is timely filed and properly supported; (3) the [27] 1 government’s position was not “substantially justified”; and (4) no “special circumstances” make 2 an award unjust. See 24 U.S.C. § 2412 (d)(1)(A); Ibrahim v. U.S. Dep’t of Homeland Sec., 912 3 F.3d 1147, 1167 (9th Cir. 2019) (citing Comm’r, I.N.S. v. Jean, 496 U.S. 154, 158 (1990)). 4 M.V. is a prevailing party, having successfully obtained a sentence-four remand on the 5 sole issue in dispute. Shalala v. Schaefer, 509 U.S. 292, 302 (1993); Matos v. Saul, 469 F.Supp.3d 6 934, 938 (N.D. Cal. 2020). Additionally, M.V. timely filed the present motion for EAJA fees. 7 See 28 U.S.C. § 2412 (d)(1)(B) (stating that an application for fees must be filed “within thirty 8 days of final judgment in the action”); Schaefer, 509 U.S. at 302 (“An EAJA application may be 9 filed until 30 days after a judgment becomes ‘not appealable’—i.e., 30 days after the time for 10 appeal has ended.”). The Commissioner bears the burden to show that her litigation position was 11 substantially justified on the law and facts. Ibrahim, 912 F.3d at 1167. The Commissioner has not 12 responded to the present motion and has not met her burden. On the record presented, the Court 13 finds no special circumstances that would make an award unjust. 14 The Court has reviewed counsel’s description of the work he performed on this matter and 15 concludes that hours incurred are reasonable. See Dkt. No. 21-1. Counsel requests fees at an 16 hourly rate of $225, which he states is based on the Western Consumer Price Index. See Dkt. No. 17 21 at 1 & n.1. The Court therefore construes the present motion as requesting an upward 18 adjustment to the EAJA statutory rate based on cost-of-living increases. 19 The EAJA provides that the amount of attorney’s fees awarded “shall be based upon 20 prevailing market rates for the kind and quality of the services furnished,” but generally caps such 21 fees at a rate of $125 per hour. See 28 U.S.C. § 2412 (d)(2)(A). However, the EAJA allows for an 22 upward adjustment of the $125 rate based on cost-of-living increases. Id.; Sorenson v. Mink, 239 23 F.3d 1140, 1148 (9th Cir. 2001). In the Ninth Circuit, “[a]ppropriate cost-of-living increases are 24 calculated by multiplying the $125 statutory rate by the annual average consumer price index 25 figure for all urban consumers (“CPI–U”) for the years in which counsel’s work was performed, 26 and then dividing by the CPI–U figure for March 1996, the effective date of EAJA’s $125 27 statutory rate.” Thangaraja v. Gonzales, 428 F.3d 870, 876-77 (9th Cir. 2005) (citing Sorenson, 1 in 2020 and $217.54 for work performed in 2021. See Ninth Circuit Rule 39.1-6; see also 2 || https://www.ca9.uscourts.gov/attorneys/statutory-maximum-rates/. Accordingly, the Court 3 awards fees at those rates for a total award of $3,874.76. 4 Based on the foregoing, M.V.’s motion for fees pursuant to EAJA § 2412 is granted in the 5 amount of $3,874.76, subject to offset against any debts M.V. owes to the United States. See 6 || Astrue v. Ratliff, 560 U.S. 586 (2010). 7 IT IS SO ORDERED. 8 Dated: July 8, 2022 [9] ee 2% [10] VIRGINIA K. DEMARCHI I United States Magistrate Judge [16] = 17 Z 18