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Kozub v. Berryhill

United States District Court, S.D. California

June 21, 2017

NICHOLAUS KOZUB, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.

          ORDER GRANTING APPLICATION FOR AWARD OF ATTORNEYS' FEES UNDER THE EQUAL ACCESS TO JUSTICE ACT [DOC. 27]

          HON. THOMAS J. WHELAN DISTRICT JUDGE.

         Pending before the Court is Plaintiff's application for attorneys' fees under the Equal Access to Justice Act, 28 U.S.C. § 2412(d)(1). [Doc. 27.] The Court decides the matter without oral argument pursuant to Civil Local Rule 7.1(d)(1). For the reasons that follow, the Court GRANTS Plaintiff's application.

         I. Background

         On March 26, 2011, Plaintiff Nicholaus Lee Kozub filed an application for Supplemental Security Income alleging disability beginning May 15, 2007. (See Report & Recommendation (“R&R”) [Doc. 22] 2:14-17.) Kozub's claims were initially denied on October 24, 2011, and upon reconsideration on April 2, 2012. (See Id. [Doc. 22] 2:16-17.) On June 1, 2012, Kozub requested a hearing before an Administrative Law Judge (“ALJ”), which took place on January 23, 2014. (See Id. [Doc. 22] 2:17-20.) ALJ Elizabeth R. Lishner decided that Kozub was not disabled within the meaning of the Social Security Act and denied Kozub's application on April 29, 2014. (See Id. [Doc. 22] 2:18-20.) The Appeals Council denied Kozub's request for review on October 5, 2015. (Id. [Doc. 22] 3:10-12.)

         On November 13, 2015, Mr. Kozub filed a Complaint seeking judicial review of the adverse administrative decision. (See Compl. [Doc. 1].) He filed a motion for summary judgment on May 6, 2016. (See Pl.'s MSJ [Doc. 13].) Defendant filed a cross-motion for summary judgment on July 21, 2016. (See Def.'s MSJ [Doc. 18].) On December 13, 2016, United States Magistrate Judge Louisa S. Porter issued a Report and Recommendation (“R&R”), which recommended that Plaintiff's motion for summary judgment be granted, that Defendant's motion for summary judgment be denied, and that the case be remanded for further proceedings. (See R&R [Doc. 22].) Defendant did not object to the R&R. On January 9, 2016, the Court adopted Judge Porter's R&R in its entirety and ordered the case remanded for further proceedings. (Jan. 9, 2017 Order [Doc. 23].)

         On March 16, 2017, Plaintiff filed the pending application for attorneys' fees. (Pl.'s App. [Doc. 27].) Plaintiff seeks 45.7 hours of attorneys' fees under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d)(1), at a rate of $190.28/hour for work completed in 2015 and $192.68/hour for work completed in 2016-an amount totaling $8, 782.91.[1] (See Angelo Decl. [Doc. 27-2] ¶ 7; Reply [Doc. 30] 6:3-6.) Despite the fact that it did not object to the R&R, Defendant opposes, contending that Plaintiff is not entitled to fees at all. (Def.'s Opp'n [Doc. 29-1] 3:7-6:18.) Alternatively, it contends that Plaintiff should only be compensated for 18.1 hours of attorney work at the same rate, for $3, 479 in total. (Id. [Doc. 29-1] 6:19-10:4.)

         II. Legal Standard

Except as otherwise specifically provided by statute, a court shall award to a prevailing party other than the United States fees and other expenses, in addition to any costs awarded pursuant to subsection (a), incurred by that party in any civil action (other than cases sounding in tort), including proceedings for judicial review of agency action, brought by or against the United States in any court having jurisdiction of that action, unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust.

28 U.S.C. § 2412(d)(1)(A).

         To the extent that Plaintiff is entitled to fees under the EAJA, such fees much be “reasonable.” See 28 U.S.C. § 2412(d)(2)(A). A reasonable attorneys' fee is determined by multiplying a reasonable hourly rate by the number of hours reasonably expended on the litigation. See McGrath v. County of Nevada, 67 F.3d 248, 252 (9th Cir. 1995). The product of those two figures, known as a lodestar, must then be adjusted downward by any claimed hours that were not reasonably expended. See id. “Ultimately, a ‘reasonable' number of hours equals ‘[t]he number of hours . . . [which] could reasonably have been billed to a private client.' ” Gonzalez v. City of Maywood, 729 F.3d 1196, 1202 (9th Cir. 2013) (quoting Moreno v. City of Sacramento, 534 F.3d 1106, 1111 (9th Cir. 2008)).

         III. Discussion

         A. The Government's Position was Not Substantially Justified.

         The government contends that the Plaintiff is not entitled to attorneys' fees at all because it was substantially justified in defending this case. (See Def.'s Opp'n [Doc. 29-1] 1:8-6:18.)

         A position is “substantially justified” if it is reasonable in law and fact. See Pierce v. Underwood, 487 U.S. 552, 565 (1988). “The government has the burden of demonstrating that its position was substantially justified.” Kali v. Bowen, 854 F.2d 329, 332 (9th Cir. 1988). “[Its] failure to prevail does not raise a presumption that its position was not substantially justified.” Id. However, “it ‘will be only a decidedly unusual case in which there is substantial justification under the EAJA even though the agency's decision was reversed as lacking in reasonable, substantial and probative evidence in the record.' ” Campbell v. Astrue, 736 F.3d 867, 868 (9th Cir. 2013) (quoting Thangaraja v. Gonzales, 428 F.3d 870, 874 (9th Cir. 2005)). The ...


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