United States District Court, S.D. California
ORDER GRANTING IN PART PLAINTIFF'S MOTION FOR
FEES UNDER THE EQUAL ACCESS TO JUSTICE ACT [DKT. 86]
Honorable Larry Alan Burns Chief United States District Judge
Plaintiff
Tho Van Ha, the prevailing party in this Social Security Act
appeal, moves for an award of attorney's fees and other
expenses under the Equal Access to Justice Act
(“EAJA”), 28 U.S.C. § 2412. In all, Mr. Ha
seeks $600 in costs and $72, 666.92 in attorney's fees,
which represents over 296 hours of work by his counsel,
Alexandra Tran Manbeck. For the reasons below, the Court
finds that Plaintiff is entitled to a total award of $50,
710.82 under the EAJA.
The
EAJA “authorizes federal courts to award attorney's
fees, court costs, and other expenses when a party prevails
against the United States, . . . ‘unless the court
finds that the position of the United States was
substantially justified.'” Hardisty v.
Astrue, 592 F.3d 1072, 1076 (9th Cir. 2010) (quoting 28
U.S.C. § 2412). The Commissioner doesn't present a
substantial justification defense here, so the question
largely turns on whether Mr. Ha's claimed amount for
attorney's fees and costs-roughly $73, 000-is reasonable.
The Court concludes that Plaintiff is entitled to a portion
of the claimed fees, but that the amount should be reduced.
Plaintiff's
counsel, Ms. Manbeck, has engaged in dilatory behavior
throughout this case. For example, despite the fact that
Plaintiff was awarded benefits from a separate ALJ in April
2014, Ms. Manbeck-who also represented Plaintiff in that
action-declined to inform the Court (or the Commissioner) of
this fact until the case was appealed to the Ninth Circuit
fifteen months later. That the Commissioner “should
have been aware” of the other ALJ decision does not
excuse Plaintiff's failure to inform the relevant parties
when it was clear they were unaware. This led to months of
needless litigation and eventually resulted in remand. Then,
on remand, Ms. Manbeck moved for an award of EAJA fees
despite being aware that such fees were not available for
so-called “Sentence Six remands.” See
Order Denying Motion for Fees, Dkt. 56. This again required
protracted briefing and needlessly wasted the time of the
Court and the parties. The Court cannot condone this behavior
by awarding Plaintiff the full amount of fees claimed.
Plaintiff's
claimed fees are excessive in light of this course of
conduct. Much of the work done in this case-and which
Plaintiff now seeks compensation for-was necessary only
because of his counsel's actions. At least 40.5 of the
claimed hours in 2013 and 2014, for example, were spent
responding to the Commissioner's motion to dismiss, a
motion the Court ultimately granted. The Court does not see
fit to award attorney's fees for these hours. Nor will
the Court credit the 36.35 hours[1] Ms. Manbeck spent in 2016
resisting remand in the Ninth Circuit and filing a
borderline-frivolous EAJA application. Finally, the Court
agrees with the Commissioner that the 29.75 hours claimed for
preparing the current EAJA application is excessive; the
Court will allot 14 hours for this instead.
That
said, the Court agrees that Ms. Manbeck is entitled to a $50
per hour enhancement for her fluency in Vietnamese and
specialization in refugee social security cases. A party is
entitled to an enhanced EAJA rate if the relevant skill-here,
Vietnamese proficiency-was “necessary to the litigation
in question” and “could not be obtained elsewhere
at the statutory rate.” Pirus v. Bowen, 869
F.2d 536, 541 -42 (9th Cir. 1989). Mr. Ha is a Vietnamese
refugee who does not speak English. In similar situations,
this Court has previously recognized that an attorney's
proficiency in Vietnamese, paired with an expertise in
refugee issues, is the type of “necessary” and
“specialized” skill that warrants a $50 per hour
enhancement. See, e.g., Nguyen v. Berryhill,
10-cv-2349-LAB-MDD, Dkt. 15. The Court will therefore apply
the enhanced EAJA rate to the hours it deems reasonable.
Plaintiff's
Motion for Attorney's Fees, (Dkt. 86), is GRANTED
IN PART. The Court concludes that Plaintiff is
entitled to attorney's fees for the following hours: 9
hours in 2013 at the enhanced statutory rate of $237.02;
31.25 hours in 2014 at $240.06; 10.75 hours in 2015 at
$240.28; 58 hours in 2016 at $242.68; 55 hours in 2018 at
$251.60; and 39.25 hours in 2019 at $254.25. This amounts to
$50, 110.82 in attorney's fees. The Court will also award
$600 in claimed costs, for total EAJA award of $50,
710.82.
It is
ORDERED that the Commissioner shall, within
90 days of this order, (1) determine whether this award is
subject to offsets by the Treasury Department, (2) provide an
accounting of any claimed offsets to Plaintiff's counsel;
and (3) pay any non-offset portion of the award directly to
the Law Office of Alexandra Manbeck.
IT
IS SO ORDERED.
---------
Notes:
[1] There is a discrepancy in Ms.
Manbeck's declaration between the total number of hours
listed for 2016 (104.60) and the sum total of ...