United States District Court, S.D. California
ORDER GRANTING APPLICATION FOR AWARD OF
ATTORNEYS' FEES UNDER THE EQUAL ACCESS TO JUSTICE ACT
THOMAS J. WHELAN DISTRICT JUDGE.
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.
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.)
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].)
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. (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]
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).
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)).
The Government's Position was Not Substantially
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.)
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 ...