Nguyen v. Kijakazi
| Decision Date | 27 August 2021 |
| Docket Number | 18-cv-00590-H-KSC |
| Court | U.S. District Court — Southern District of California |
| Parties | CU NGUYEN, Plaintiff, v. KILOLO KIJAKAZI, Acting Commissioner of Social Security Administration, Defendant. |
ORDER GRANTING PLAINTIFF'S MOTION FOR ATTORNEY'S FEES [DOC. NO. 37.]
MARILYN L. HUFF DISTRICT JUDGE, UNITED STATES DISTRICT COURT.
On June 8, 2021, Plaintiff Cu Nguyen filed a motion for attorney's fees pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412, and Ninth Circuit Rule 39-1.6. (Doc. No. 37.) On July 22, 2021, Defendant filed a response in opposition to Plaintiff's motion for attorney's fees. (Doc. No. 42.) On August 2, 2021, the Court took the matter under submission. (Doc. No. 43.) On August 4, 2021 Plaintiff filed a reply. (Doc. No. 46.) For the reasons below, the Court grants Plaintiff's motion for attorney's fees.
On August 29, 2013, Plaintiff applied for disability insurance benefits and supplemental security income, claiming a disability onset date of May 15, 2011. (Doc. No. 10-2 at 48 10-5 at 1-21.) The Social Security Administration (“SSA”) initially denied Plaintiff's application on December 30, 2013 and denied reconsideration on April 24, 2014. (Doc. No. 10-4 at 2-6, 9-13.) Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”) on June 24, 2014. (Id. at 17-18.) The ALJ held a hearing on Plaintiff's application on August 30, 2016. (Doc. No. 10-2 at 54-96.) At the conclusion of the hearing, the ALJ determined that Plaintiff was not disabled from May 15, 2011, the alleged onset date through September 22, 2016, the date of the ALJ's decision. (Id. at 47-48.) On January 29, 2018, the Social Security Appeals Council then denied Plaintiff's request for review, rendering the ALJ's decision final. (Id. at 2-7.)
On July 29, 2019, the Court denied Plaintiff's motion for summary judgment, granted the government's motion for summary judgment, and affirmed the ALJ's order. (Doc. No. 29.) Plaintiff appealed. (Doc. No. 30.)
On April 1, 2021, the Ninth Circuit reversed and remanded “‘to the district court with instructions to remand to the ALJ on an open record for further proceedings.'” (Doc. No. 35 at 5.) The Ninth Circuit held that the ALJ's resolution of the conflicting medical evidence was not based on a “legitimate” reason that is supported by substantial evidence. (Id. at 3.) The Ninth Circuit further held that because the ALJ “relied on his flawed evaluation of the medical evidence” in rejecting other testimony, the ALJ did not properly discount that testimony. (Id. at 5.)
On May 25, 2021, the Ninth Circuit issued its mandate. (Doc. No. 35.) By the present motion, Plaintiff moves for $50, 119.22 in attorney's fees and $1, 065 in costs pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412. (Doc. No. 37-1 at 21.)
The Equal Access to Justice Act provides: “a court shall award to a prevailing party other than the United States fees and other expenses . . . 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).
“Substantial justification means ‘justified in substance or in the main-that is, justified to a degree that could satisfy a reasonable person.'” Meier v. Colvin, 727 F.3d 867, 870 (9th Cir. 2013) (quoting Pierce v. Underwood, 487 U.S. 552, 565 (1988)). “Put differently, the government's position must have a ‘reasonable basis both in law and fact.'” Id. (quoting Pierce, 487 U.S. at 565). “The ‘position of the United States' includes both ‘the position taken by the United States in the civil action' as well as the agency's action or inaction ‘upon which the civil action is based.'” Gardner, 856 F.3d at 656 (quoting 28 U.S.C. § 2412(d)(2)(D)).
“The decision whether to award fees under the EAJA, including the district court's conclusion that the government's position was substantially justified, is reviewed for abuse of discretion.” Gutierrez v. Barnhart, 274 F.3d 1255, 1258 (9th Cir. 2001) (citing Pierce, 487 U.S. at 565). “It is the government's burden to show that its position was substantially justified or that special circumstances exist to make an award unjust.” Id.
As an initial matter, “‘[b]efore deciding whether an award of attorney's fees is appropriate . . . a court must determine whether the party seeking fees has prevailed in the litigation.'” Wood v. Burwell, 837 F.3d 969, 973 (9th Cir. 2016) (quoting CRST Van Expedited, Inc. v. E.E.O.C., 136 S.Ct. 1642, 1646 (2016)). The government does not dispute that Plaintiff is a “prevailing party” under the EAJA. (See generally Doc. No. 42.) See Hill v. Comm'r of Soc. Sec., 428 F.Supp.3d 253, 259 (E.D. Cal. 2019) ; Gutierrez v. Barnhart, 274 F.3d 1255, 1258 (9th Cir. 2001) ().
Rather, the government argues that Plaintiff is not entitled to EAJA fees because the Commissioner's position was substantially justified. (Doc. No. 42 at 4-6.) It is the government's burden to show that its position was substantially justified. See Gutierrez, 274 F.3d at 1258.
Here, the Ninth Circuit held that “the ALJ's resolution of the conflicting medical evidence was not based on a ‘legitimate' reason that is supported by substantial evidence.” (Doc. No. 35 at 3.) The Ninth Circuit explained that the ALJ identified insufficient evidence in the record to support “the assertion that ‘Dr. Ning has had the opportunity to treat the claimant over time' and had a ‘treating relationship of a longer duration.'” (Id. at 3-4.) The Ninth Circuit noted that the record showed that a different doctor, Dr. Henderson, “indisputably had a long-term treating relationship” with Plaintiff. (Id. at 4.) Thus, (Id.) In addition, the Ninth Circuit explained that “the ALJ failed to adequately address the difference in time frame reflected in the conflicting medical testimony.” (Id.)
The Court acknowledges that it came to a different conclusion than the Ninth Circuit when the matter was before this Court. Nevertheless, in light of the Ninth Circuit's analysis, the government has failed to show that its position was reasonable in law and fact, i.e., “substantially justified.” As such, Plaintiff is entitled to attorney's fees under the EAJA.
“[C]ourts should apply what is now called the ‘lodestar' method to determine what constitutes a reasonable attorney's fee under 42 U.S.C. § 1988, the fee shifting statute applicable in civil rights cases.” Costa v. Comm'r of Soc. Sec. Admin., 690 F.3d 1132, 1135 (9th Cir. 2012). “To calculate the lodestar amount, the court multiplies ‘the number of hours reasonably expended on the litigation . . . by a reasonable hourly rate.'” Id. (quoting Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)).
Assessing how much time an attorney can reasonably spend on a case “will always depend on case-specific factors including, among others, the complexity of the legal issues, the procedural history, the size of the record, and when counsel was retained.” Costa, 690 F.3d at 1136. “[C]ourts should generally defer to the ‘winning lawyer's professional judgment as to how much time he was required to spend on the case.'” Id.
“EAJA provides that fees may be awarded based upon prevailing market rates for the kind and quality of the services furnished, except that attorney fees shall not be awarded in excess of $125 per hour unless the court determines that an increase in the cost of living or a special factor, such as the limited availability of qualified attorneys for the proceedings involved, justifies a higher fee.” Nadarajah v. Holder, 569 F.3d 906, 911 (9th Cir. 2009) (quoting 28 U.S.C. § 2412(d)(2)(A)). “The Ninth Circuit has provided that, except in unusual circumstances, a cost of living increase should be granted to adjust for inflation.” Cath. Soc. Servs., Inc. v. Napolitano, 837 F.Supp.2d 1059, 1072 (E.D. Cal. 2011) (citing Animal Lovers Volunteer Ass'n, Inc. v. Carlucci, 867 F.2d 1224, 1227 (9th Cir. 1989)); accord Souphalith v. Astrue, No. 06-CV-01410-H (AJB), 2009 WL 35471, at *4 (S.D. Cal. Jan. 5, 2009); see also Sorenson v. Mink, 239 F.3d 1140, 1148 (9th Cir. 2001) ().
As an initial matter, Plaintiff requests a $50 per hour “special factor” fee enhancement. (Doc. No. 37-1 at 11-19.) Plaintiff argues that his counsel is entitled to this “specifical factor” enhancement because of her fluency in Vietnamese and because of her experience in civil rights litigation and social security law. (Id. at 11.)
“Enhanced hourly rates based on the special factor of the limited availability of qualified attorneys for the proceedings involved may be awarded under EAJA where the attorneys possess ‘distinctive knowledge' and ‘specialized skill' that was ‘needful to the litigation in question' and ‘not available elsewhere at the statutory rate.'” Nadarajah, 569 F.3d at 912. “Examples of the former would be an identifiable practice specialty such as patent law, or knowledge of foreign law or language.” Pierce v. Underwood, 487 U.S. 552, 572 (1988).
Plaintiff's counse...
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