Lieu v. Kijakazi

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8 UNITED STATES DISTRICT COURT

9 SOUTHERN DISTRICT OF CALIFORNIA

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11 RICHARD T. L. Case No.: 23-cv-640-DDL

12 Plaintiff,

ORDER GRANTING IN PART

13 v. AND DENYING IN PART

PLAINTIFF’S MOTION FOR

14 LELAND DUDEK, ACTING AWARD OF ATTORNEY’S FEES

15 COMMISSIONER OF SOCIAL PURSUANT TO THE EQUAL

ACCESS TO JUSTICE ACT

SECURITY,1

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Defendant. [Dkt. No. 28]

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19 Pursuant to the Equal Access to Justice Act (the “Act” or “EAJA”), Plaintiff

20 Richard T. L. (“Plaintiff”) moves for an award of $47,728.44 in fees and $495.00 in

21 costs incurred by his counsel in connection with his appeal from an adverse

22 decision of the Commissioner (the “Motion”). Dkt. No. 28. For the reasons set

23 forth below, the Motion is GRANTED IN PART and DENIED IN PART.

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1 Leland Dudek is automatically substituted for Kilolo Kijakazi pursuant to

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1 I.

2 BACKGROUND

3 Plaintiff appealed the denial of his claim for Disability Insurance and

4 Supplemental Security Income benefits under Titles II and XVI of the Social

5 Security Act. Dkt. No. 1 at 1. On September 19, 2024, the Court affirmed the ALJ’s

6 denial of disability insurance benefits under Title II but remanded Plaintiff’s claim

7 for supplemental security income under Title XVI for further administrative

8 proceedings. Dkt. No. 26 at 26.2 The Court found the ALJ erred in failing to

9 consider medical evidence predating November 21, 2019 when adjudicating the

10 Title XVI claim. Id. at 10.

11 Plaintiff now moves for an award of his attorney’s fees and costs. Plaintiff

12 asserts he is the prevailing party within the meaning of the Act and requests that

13 his counsel be compensated for 162 hours expended on the litigation (including

14 the request for fees now before the Court) at an enhanced rate of $ 294.62 per hour.

15 See generally Dkt. No. 28; Dkt. No. 31. Plaintiff further requests any fee award be

16 paid directly to his counsel. Dkt. No. 28 at 33.

17 The Commissioner opposes Plaintiff’s motion, asserting Plaintiff does not

18 qualify for an award under the EAJA, or, in the alternative, the award should be

19 subject to a reduction. See generally Dkt. No. 30. The Commissioner further asserts

20 any award should be paid to Plaintiff and not to Plaintiff’s counsel. Id. at 24.

21 II.

22 LEGAL STANDARDS

23 The EAJA provides for the recovery of fees and costs by the prevailing party

24 in litigation against the United States or its agencies. See generally 28 U.S.C. § 2412.

25 As is relevant to the Motion, the Act provides that upon timely application:

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1 . . . a court may award reasonable fees and expenses of attorneys, in

addition to the costs which may be awarded pursuant to subsection

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(a), to the prevailing party in any civil action brought by or against the

3 United States or any agency or any official of the United States acting

4 in his or her official capacity in any court having jurisdiction of such

action. The United States shall be liable for such fees and expenses to

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the same extent that any other party would be liable under the

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common law or under the terms of any statute which specifically

7 provides for such an award.

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9 Id., § 2412(b). Any application for attorney’s fees must be supported by “an

10 itemized statement from any attorney . . . representing or appearing in [sic] behalf

11 of the party stating the actual time expended and the rate at which fees and other

12 expenses were computed.” Id., § 2412(d)(1)(B). Fees and expenses are not

13 recoverable by a party whose net worth exceeds $2,000,000. Id., § 2412(d)(2).

14 The Court may in its discretion decline to award fees where it finds “that the

15 position of the United States was substantially justified or that special

16 circumstances make an award unjust.” Id., § 2412(d)(1)(A). The Court may

17 likewise reduce or deny any award to a party whose conduct “unduly and

18 unreasonably” delayed the proceedings. Id., § 2412(d)(1)(C). The Court’s fee

19 award should be “adequate to attract competent counsel, but . . . [should] not

20 produce windfalls to attorneys.” Hensley v. Eckerhart, 461 U.S. 424, 430 n.4 (1983).3

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3 Unless otherwise noted, all citations, subsequent history, and parallel

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reporter citations are omitted, and in direct quotes, all internal quotation marks,

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1 III.

2 DISCUSSION

3 A. Plaintiff’s Eligibility for Fees

4 1. Plaintiff Is the Prevailing Party on the Title XVI Claim

5 The Ninth Circuit has long held that “litigants who achieve relief other than

6 a judgment on the merits” may nevertheless be considered prevailing parties for

7 purposes of the Act. Li v. Keisler, 505 F.3d 913, 917 (9th Cir. 2007) (citing Carbonell

8 v. INS, 429 F.3d 894, 899 (9th Cir. 2005) and Rueda-Menicucci v. INS, 132 F.3d 493,

9 495 (9th Cir. 1997)). Accordingly, the Court finds that although it did not afford

10 Plaintiff the full extent of relief requested in the complaint, Plaintiff is nevertheless

11 the prevailing party for purposes of the Act with respect to his Title XVI claim.4,5

12 The Commissioner does not appear to dispute this point. See generally Dkt. No. 30.

13 2. The Commissioner’s Position Was Not Substantially Justified

14 The Court next considers whether the Government’s position in the

15 litigation was “substantially justified.” 28 U.S.C. § 2412(d)(1)(A). “Substantial

16 justification” in this context means that the government’s position had a

17 reasonable basis in law and fact. Pierce v. Underwood, 487 U.S. 552, 565 (1988). It is

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20 4 Plaintiff sought reversal of the Commissioner’s decision, a finding that

Plaintiff is disabled and a remand for an award of retroactive and prospective

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benefits, in addition to his reasonable attorney’s fees. See Dkt. No. 1 at 7.

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5 Plaintiff did not prevail on his Title II claim, as to which the Court found the

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ALJ’s disability determination was legally sound and supported by substantial

24 evidence. See Dkt. No. 26 at 1, 26. Although prevailing party status requires an

25 evaluation of the “degree of success obtained,” see Comm’r, INS v. Jean, 496 U.S.

154, 160 (1990) (hereinafter “Jean”), the Court determines it Plaintiff’s limited

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success is best addressed in the context of counsel’s requested fee, as more fully

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explained below. See id. at 162 (“the EAJA . . . favors treating a case as an inclusive

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1 the government’s burden to establish substantial justification. Gutierrez v. Barnhart,

2 274 F.3d 1255, 1258 (9th Cir. 2001). The “position of the United States” includes

3 the decisions made at the administrative level, as well as the government’s

4 decision to defend the federal action. See Li, 505 F.3d at 918.

5 Here, Plaintiff prevailed on his Title XVI claim on the narrow issue of the

6 ALJ’s decision to preclude evidence prior to November 2019. Dkt. No. 28-1 at 13.

7 The Court agrees “Plaintiff is not entitled to EAJA fees simply because he

8 prevailed in Court.” Dkt. No. 30 at 7. Nevertheless, the Court’s finding that the

9 ALJ erroneously excluded this evidence “without explanation” or “legal

10 justification” indicates the ALJ’s position was not substantially justified. See Dkt.

11 No. 26 at 10-11.

12 Mindful that the “policy goal of the EAJA is to encourage litigants to

13 vindicate their rights” where government’s error has “forced the litigant to seek

14 relief from a federal court,” Li, 505 F.3d at 919, the Court is also not persuaded that

15 the Commissioner’s decision to defend the ALJ’s error on appeal was substantially

16 justified. The Commissioner offers post-hoc justifications for the ALJ’s refusal to

17 consider evidence predating November 2019 in adjudicating Plaintiff’s claim for

18 supplemental security income benefits, including that such benefits are “not

19 payable before the date of application,” and that the 2019 decision on Plaintiff’s

20 Title II claim “established” Plaintiff was not disabled before November 2019. See

21 Dkt. No. 30 at 7-9. The latter argument merely repeats the ALJ’s error of grafting

22 the findings from the Title II claim onto Plaintiff’s previously unadjudicated Title

23 XVI claim. More importantly, the ALJ did not cite either reason as a basis for

24 excluding evidence predating November 2019 from consideration. It is well

25 established the Court cannot affirm on a basis not articulated by the ALJ. See

26 Garrison v. Colvin, 759 F.3d 995, 1010 (9th Cir. 2014). Indeed, and contrary to the

27 Commissioner’s statement that “remand was not inevitable,” Dkt. No. 30 at 9, the

28 ALJ’s failure to explain the exclusion of this evidence virtually necessitated

1 remand. See Dkt. No. 26 at 12 (“Because the record does not permit the Court to

2 reasonably discern the ALJ’s path, the Court cannot conclude the ALJ’s error was

3 harmless.”).

4 For the above reasons, the Court finds the Commissioner’s position with

5 respect to Plaintiff’s Title XVI claim was not substantially justified.

6 3. Other Considerations

7 The parties do not dispute, and the Court finds, that the Act’s other eligibility

8 requirements are satisfied. The Commissioner has not identified any “special

9 circumstances that would make an award [of fees] unjust.” See Cath. Soc. Servs.,

10 Inc. v. Napolitano, 837 F. Supp. 2d 1059, 1071 (E.D. Cal. 2011) (finding “no special

11 circumstances exist that would make an EAJA award in this case unjust” where

12 the defendants did not make any argument to the contrary); see also Gutierrez, 274

13 F.3d at 1258 (burden of demonstrating “special circumstances” lies with the

14 government). Plaintiff prevailed in a civil suit against an official of the United

15 States acting in their official capacity – namely, the Commissioner of the Social

16 Security Administration. Plaintiff’s application for fees was timely made, as he

17 filed the instant Motion within 90 days of the Court’s September 19, 2024 order

18 remanding the Title XVI claim to the Administration for further proceedings. See

19 Li, 505 F.3d at 917 (finding, after accounting for post-judgment appeal period, that

20 application for fees filed within 90 days after the order remanding the matter to

21 the agency is timely for purposes of the EAJA); see also 28 U.S.C. § 2412(d)(1)(B).

22 Finally, Plaintiff’s net worth does not exceed $2,000,000. See Dkt. No. 28-1 at 9.

23 Based on the foregoing, the Court finds Plaintiff is eligible to recover fees

24 under the EAJA.

25 B. Reasonable Fee Award

26 “The amount of attorneys’ fees awarded under EAJA must be reasonable.”

27 Nadarajah v. Holder, 569 F.3d 906, 910 (9th Cir. 2009). “The most useful starting

28 point for determining the amount of a reasonable fee is the number of hours

1 reasonably expended on the litigation multiplied by a reasonable hourly fee.” Id.

2 (citing Hensley, 461 U.S. at 433-34).6 The party seeking EAJA fees bears the “burden

3 to document the appropriate hours expended and to submit evidence in support

4 of those hours worked.” League of Wilderness Defs./Blue Mountains Biodiversity

5 Project v. Turner, 305 F. Supp. 3d 1156, 1170 (D. Or. 2018). The hourly rate is capped

6 by statute unless the Court determines an increase in cost of living or another

7 special factor justifies a higher fee. 28 U.S.C. § 2412(d)(2)(A). The Court “retain[s]

8 substantial discretion in fixing the amount of an EAJA award.” Jean, 496 U.S. at

9 163. The Court must explain any significant reduction in counsel’s requested fees.

10 Costa v. Comm’r of Soc. Sec. Admin., 690 F.3d 1132, 1135 (9th Cir. 2012).

11 1. Hours Reasonably Expended

12 Plaintiff’s counsel avers she has spent 162 hours on this matter, from the

13 drafting of the complaint to the filing of the reply brief in support of this Motion.

14 See Declaration of Alexandra Manbeck (“Manbeck Decl.”), Dkt. No. 28-5, at ¶¶ 7-

15 8; Dkt. No. 31 at 12. The Court has carefully examined counsel’s billing records

16 and reduces counsel’s hours as follows:

17 Case Starting Documents. Counsel’s billing records indicate she spent 7.5

18 hours preparing the complaint and motion to proceed in forma pauperis (“IFP”),

19 which includes unspecified amounts of time reviewing the file and discussing the

20 complaint with Plaintiff, at least 0.5 hours preparing the IFP motion, and 0.5 hours

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24 6 Although Hensley examined attorneys’ fee awards under a different statute,

25 the Court clarified that “[t]he standards set forth in [its] opinion are generally

applicable in all cases in which Congress has authorized an award of fees to a

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‘prevailing party.’” Hensley, 461 U.S. at 433 n. 7; see also Schwarz v. Sec’y of Health &

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Hum. Servs., 73 F.3d 895, 901 n.2 (9th Cir. 1995) (noting Hensley’s application in

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1 to file the complaint. See Manbeck Decl., ¶ 7 (entries dated 4/5/23, 4/6/23, and

2 4/7/23).

3 The Court deducts 0.5 hours for filing the complaint. “Tasks which are

4 clerical in nature are not properly billed as attorney fees but are overhead expenses

5 absorbed by counsel.” League of Wilderness Defs., 305 F. Supp. 3d at 1171 (further

6 clarifying such tasks include filing documents with the court); see also Nadarajah,

7 569 F.3d at 921 (noting “filing, transcript, and document organization time [is]

8 clerical in nature and should [be] subsumed in firm overhead”).

9 The Court defers to counsel’s professional judgment regarding the time

10 necessary to prepare the complaint and IFP motion. See Costa, 690 F.3d at 1136

11 (“courts should generally defer to the winning lawyer’s professional judgment as

12 to how much time he was required to spend on the case”) (quoting Moreno v. City

13 of Sacramento, 534 F.3d 1106, 1112 (9th Cir. 2008)). However, the Court reduces the

14 time by 1 hour due to a mathematical error in which discrete tasks totaling 1.5

15 hours were recorded as 2.5 hours. See Manbeck Decl., ¶ 7 (entry dated 4/6/23).

16 Therefore, the Court finds 6 hours were reasonably expended on preparing case-

17 starting documents.

18 Preparing Opening Brief. Counsel states she spent 82 hours drafting the

19 opening brief, including time spent analyzing the administrative record and

20 discussing the case with Plaintiff. See Manbeck Decl., ¶ 7 (entries dated 6/14/23,

21 7/30/23, 8/6/23, 8/8/23, 8/10/23, 8/12/23, 8/15/23, 8/20/23, 8/23/23, 8/24/23, 8/25/23,

22 and 8/27/23).

23 The Court finds Plaintiff’s entry “finalize plan for summary judgment” (6.75

24 hours, entry dated 7/30/23) does not describe the underlying activity with

25 sufficient specificity to allow the Court to determine whether this entry is

26 redundant or unnecessary. See Mohamed v. Barr, 562 F. Supp. 3d 1128, 1136 (E.D.

27 Cal. 2022) (noting courts in this Circuit “reduced fee awards where the billing

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1 entries were too vague to conduct a meaningful review or determine whether the

2 time expended was reasonable”). These hours are deducted from counsel’s time.

3 The Court further reduces the remaining time to account for Plaintiff’s

4 limited success on appeal. “A reduced fee award is appropriate if the relief,

5 however significant, is limited in comparison to the scope of the litigation as a

6 whole.” Hensley, 461 U.S. at 440. As noted, Plaintiff sought review of the ALJ’s

7 disposition of two distinct claims: one for disability benefits (the Title II claim) and

8 one for supplemental security income (the Title XVI claim). Plaintiff sought

9 reversal and remand for an immediate award of benefits on both the Title II and

10 Title XVI claims, but Plaintiff succeeded only in securing a remand for further

11 proceedings on one of the claims.

12 A reduction in fees is appropriate even if the claims are “interrelated,

13 nonfrivolous and raised in good faith.” Id. at 436. Here, however, the Court

14 remanded the matter on a procedural error, regarding which Plaintiff’s briefing

15 and arguments on the merits of the unsuccessful Title II claim were neither related

16 nor helpful. Plaintiff prevailed in large part because the Court found the Title II

17 and Title XVI claims to be distinct. In determining that the ALJ applied the

18 appropriate “period of consideration” for evidence in the Title II claim but erred

19 in applying the same period to the Title XVI claim, the Court pointed out the

20 claims were not part of the same decision. Dkt. No. 26 at 11 (“Simply put, Plaintiff’s

21 application for supplemental security income was a new claim”).

22 Plaintiff acknowledges he was “unable to reopen his Title II application,”

23 but states counsel should nevertheless be compensated for this work because it

24 “laid the groundwork for a successful appeal.” Dkt. No. 31 at 10-11. Setting aside

25 that no appeal was taken from the Court’s order on the Title II claim, nearly every

26 unsuccessful party could make this argument, rendering the requirement that

27 counsel’s work “result in a material alteration of the legal relationship of the

28 parties . . . [that is] judicially sanctioned” a nullity. Li, 505 F.3d at 917.

1 “Hours expended on unrelated, unsuccessful claims should not be included

2 in an award of fees.” Sorenson v. Mink, 239 F.3d 1140, 1147 (9th Cir. 2001); see also

3 Schwarz., 73 F.3d at 906 (“[T]he fact that [plaintiff] achieved an excellent result on

4 her one successful claim doesn’t work to resurrect the hours her lawyers spent on

5 the unsuccessful claims . . ..”). Plaintiff’s time entries do not contain sufficient

6 detail to allow the Court to determine what amount of time was spent briefing the

7 Title II claim. Accordingly, the Court in its discretion reduces counsel’s hours by

8 50% to account for Plaintiff’s limited success. The Court applies a further 10%

9 reduction for Plaintiff’s counsel’s liberal use of block billing, which many courts

10 have recognized is a “form of improper recording” for time that “makes it

11 extremely difficult for a court to evaluate the reasonableness of the number of

12 hours expended.” Mohamed v. Barr, 562 F. Supp. 3d 1128, 1136 (E.D. Cal. 2022)

13 (further noting the Ninth Circuit’s approval of reducing block-billed time); see also

14 Welch v. Metropolitan Life Ins. Co., 480 F.3d 942, 948 (9th Cir. 2000) (“block billing

15 makes it more difficult to determine how much time was spent on particular

16 activities”). The Court therefore finds 30.1 hours were reasonably expended

17 preparing the opening brief.

18 Preparing Reply Brief. Counsel avers she spent 13 hours preparing the reply

19 brief. Manbeck Decl., ¶ 7 (entries dated 11/1/23 and 11/13/23). For the reasons

20 discussed above, a 60% across-the-board reduction is appropriate given counsel’s

21 limited success and block-billed time entries. Mohamad, 562 F. Supp. 3d at 1136.

22 The Court finds 5.2 hours were reasonably expended preparing the reply brief.

23 Other Motion Practice. Counsel’s billing records indicate 9 hours spent

24 opposing the Commissioner’s two requests for extensions of time. See Manbeck

25 Decl., ¶ 7 (entries dated 6/6/23, 9/15/23, and 9/18/23). The Commissioner’s requests

26 for extensions of time were “distinct and separate from the course of conduct that

27 gave rise to the injury upon which the relief granted is premised.” Pierce v. Cnty.

28 of Orange, 905 F. Supp. 2d 1017, 1032 (C.D. Cal. 2012). Plaintiff’s oppositions were

1 unsuccessful (see Dkt. Nos. 12, 23) and did not otherwise “substantially advance[]

2 [the] client’s interests” in the litigation. See Hensley, 461 U.S. at 430-31 (noting fees

3 for unsuccessful motion practice may be appropriate where plaintiff secured a

4 “significant concession” by filing it). The Court finds this time was not reasonably

5 expended and will not award any fees for preparing these opposition papers.

6 Communications with Client. Counsel seeks reimbursement for 5.25 hours

7 communicating with her client about the case. See Manbeck Decl., ¶ 7 (entries

8 dated 6/7/23 and 9/21/24). Although the time entry for June 7, 2023 contains little

9 detail, the Court defers to counsel’s professional judgment that 1.75 hours spent in

10 consultation with Plaintiff on June 7, 2023 were reasonably spent. However, the

11 Court reduces the time entry dated September 21, 2024 to one hour. The

12 description for this entry is “Contact claimant; discuss strategy and next step [sic];

13 advise on applying for retirement/disability benefits.” Manbeck Decl., ¶ 7. It is

14 unclear to the Court what “strategy” or “next steps” warranted such a lengthy

15 discussion two days after the Court’s remand order issued. The Court also agrees

16 with the Commissioner that counsel’s consultation regarding whether Plaintiff

17 should re-apply for benefits is not properly included in an EAJA fee award. See

18 Dkt. No. 30 at 14. The time for this activity is accordingly reduced. The Court

19 finds 2.75 hours were reasonably expended on client communications.

20 Activities Following Remand Order. Counsel’s billing records indicate 36.25

21 hours were spent on the post-remand activities, including preparing the instant

22 Motion, conducting negotiations, and updating records. See Manbeck Decl., ¶ 7

23 (entries dated 3/30/24, 9/22/24, 10/15/24, 10/18/24, 10/19/24, 10/22/24, and 11/18/24).

24 Plaintiff also seeks an additional 9 hours for time spent preparing the reply brief

25 in support of the EAJA Motion. Dkt. No. 31 at 12.

26 The entry dated March 30, 2024, bearing the description “search and update

27 client’s record,” appears to either be misplaced or misdated; the Court also cannot

28 discern whether this entry is related to the entry immediately below it, dated

1 September 22, 2024. In any event, the Court finds updating records is a clerical

2 task not properly included in an EAJA fee request. Nadarajah, 569 F.3d at 921

3 (“When clerical tasks are billed at hourly rates, the court should reduce the hours

4 requested to account for the billing errors.”). Counsel’s hours are reduced by 7.25

5 hours, as indicated in the far-right column for this entry.

6 The Court is also unclear what “negotiations” were occurring on October 22,

7 2024, but defers to counsel’s professional judgment that such time expenditure

8 was reasonable.

9 The Court finds the 28 hours attributed variously to “preparing,” “drafting”

10 and “finalizing” the instant fee request are excessive and not reasonably expended

11 on this task. Although the prevailing party may recover for time spent preparing

12 its fee motion, see Jean, 496 U.S. at 162, counsel’s use of block billing again gives

13 the Court little insight into why this routine motion should have required such an

14 extraordinary expenditure of time. The Court also notes Plaintiff’s Motion is a

15 near-verbatim copy of other such requests his counsel has filed in this District,

16 including (somewhat troublingly) remarkable similarities in counsel’s fee

17 declaration.7 In other words, the Motion appears “recycled from submissions to

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7 Compare, for example, Dkt. No. 28-1 (memorandum of points and

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authorities in support of the Motion) to Plaintiff’s counsel’s briefs in support of fee

21 applications in this District in Aihoa N. v. O’Malley, Case No. 16-cv-1535, Dkt. No.

22 44-1 (filed June 20, 2024); Mary M. v. Kijakazi, Case No. 22-cv-1649-DMS-KSC, Dkt.

No. 31-1 (filed March 18, 2024); Tam Phan N. v. Kijakazi, Case. No. 20-cv-2391-WVG,

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Dkt. No. 32-1 (filed March 23, 2023); Minh Kim T. v. Kijakazi, Case No. 20-cv-02289-

24 AGS, Dkt. No. 22-1 (filed July 9, 2022); Thom Thi T. v. Saul, Case No. 17-cv-02521-

25 DMS-BLM, Dkt. No. 49-1 (filed May 9, 2022); Cu N. v. Saul, Case No. 18-cv-590-H-

KSC, Dkt. No. 37-1 (filed June 8, 2021). Based on a comparison of the Manbeck

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Declaration to counsel’s fee declarations in these matters, the Court is particularly

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disturbed by the obvious cutting and pasting of counsel’s time records. These

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1 other courts.” Welch, 480 F.3d at 950; accord Hill v. Comm'r of Soc. Sec., 428 F. Supp.

2 3d 253, 265 (E.D. Cal. 2019) (reducing award for EAJA motion after comparison to

3 prior motions demonstrated that “[b]eyond the replacing of names and . . .

4 calculations, there [were] only minor changes” to the motion before it). Further,

5 as with the briefing on the merits, the Court should consider the results obtained

6 and may reduce “fees for fee litigation” where the fee application is only partially

7 successful. Jean, 496 U.S. at 163 n.10. For these reasons, the Court finds 4 hours

8 were reasonably expended on preparing the Motion and reduces counsel’s time

9 accordingly.

10 The Court declines to award fees for counsel’s preparation of the reply brief

11 in support of the EAJA motion. Plaintiff requests reimbursement for this work at

12 the conclusion of the reply brief, stating simply “[t]he Court should award plaintiff

13 $47,728.44 ($45,076.86 plus $2,651.58 for 9 hours for the reply at an hourly rate of

14 $292.62).” Dkt. No. 31 at 12 (emphasis added). However, counsel failed to support

15 this request with an itemized statement, as required by the statute. 28 U.S.C.

16 § 2412(d)(1)(B). The Court finds Plaintiff has not met his burden to document these

17 hours, which are accordingly excluded from the Court’s fee award.

18 The Court finds 7 hours were reasonably expended on litigation activities

19 following the Court’s remand order.

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25 declarations include identical or nearly identical time descriptors, often report

identical time for these tasks, and even bear the identical mathematical,

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typographical and formatting errors. See, e.g., Aihoa N. v. O’Malley, Dkt. No. 44-2;

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Thom Thi T. v. Saul, Dkt. No. 49-3; Minh Kim T. v. Kijakazi, Dkt. No. 22-2; Tam Phan

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1 Summary. The Court finds counsel reasonably expended 49.05 hours on the

2 litigation, based on the foregoing reductions as summarized below.

3 Category Hours Hours

Claimed Allowed

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Case-Starting Documents 7.5 6.0

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Preparing Opening Brief 82 30.1

6

Preparing Reply Brief 13 5.2

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Other Motion Practice 9.0 0

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9 Communication with Client 5.25 2.75

10 Activities Following Remand Order 36.25 5.0

11 Total Hours 153 49.05

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13 2. Reasonable Hourly Rate

14 The hourly fee for EAJA awards in the Ninth Circuit is $244.62 for work

15 performed in 2023, and $251.84 for work performed in 2024.8 This rate may be

16 enhanced for specialized skills if those skills are both (1) needful to the litigation,

17 and (2) unobtainable elsewhere at the statutory rate. Cath. Soc. Servs., Inc., 837 F.

18 Supp. 2d at 1073; Nadarajah, 569 F.3d at 912. Plaintiff requests a $50 per hour fee

19 enhancement, citing counsel’s Vietnamese language skills, experience

20 representing the Vietnamese refugee community, and experience in civil rights

21 litigation and Social Security law. Dkt. No. 31 at 6-11.

22 “Congress . . . intended for courts to deviate from the statutory cap only if

23 there was limited availability of attorneys having some distinctive knowledge or

24 specialized skill needful for the litigation in question.” Pirus v Bowen, 869 F. 2d

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8 See Statutory Maximum Rates Under the Equal Access to Justice Act, United

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States Courts for The Ninth Circuit, https://www.ca9.uscourts.gov/attorneys/statutory-

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1 536, 541 (9th Cir. 1989). Specialized knowledge in disability law may justify an

2 enhancement in cases involving “a highly complex area of the Social Security Act.”

3 Id. at 536. In routine cases, however, such specialized knowledge alone does not

4 justify a fee enhancement. See Nguyen v. Berryhill, No. 10-CV-2349-LAB-MDD,

5 2017 WL 3020958, at *3 (S.D. Cal. July 17, 2017) (“The base rate takes into account

6 the degree of expertise required to litigate a Social Security appeal. If

7 enhancements were routinely awarded, the base rate would almost never be used,

8 and would be virtually meaningless.”). As Plaintiff acknowledges, “this case

9 involves the straightforward application of Social Security law to a benefit

10 application,” Dkt. No. 28-1 at 14, for which knowledge of the “esoteric nooks and

11 crannies” of the law was not required. Nadarajah, 569 F.3d at 913; see also Pirus, 869

12 F.3d at 542 (distinguishing “routine disability case” from one requiring

13 “substantial knowledge” of a “highly complex area of the Social Security Act”).

14 The Court finds a fee enhancement based on counsel’s familiarity with Social

15 Security law is not warranted.

16 The Court is also not persuaded counsel’s fluency in Vietnamese warrants

17 an increase in the statutory hourly rate. Plaintiff states he is “not fluent in English

18 and is unable to communicate in any language other than Vietnamese.” Dkt. No.

19 28-1 at 19. The undersigned has already made a finding to the contrary. Dkt. No.

20 26 at 9 (finding “nothing in the record evinces that Plaintiff was unable to

21 understand the proceedings or meaningfully participate in them”). Furthermore,

22 “the bulk of the work in this case required [counsel] to review English language

23 records . . . and conduct English language legal research on U.S. federal law,” none

24 of which required “knowledge of Vietnamese.” Nguyen, 2017 WL 3020958, at *2.

25 The Court is therefore not persuaded counsel’s Vietnamese language skills were

26 “needed in the litigation,” and declines to award fees at an enhanced rate for all

27 litigation activities. The Court finds, however, counsel’s fluency likely facilitated

28 her communications with her client, and will apply an enhanced rate for those

1 hours spent in consultation with Plaintiff. See id. at *2 (noting the court could

2 award an enhancement for those hours spent in “communicating directly with

3 [the] client,” which “is a critical component of effective representation”).

4 The Court similarly finds a fee enhancement based on counsel’s experience

5 with the Vietnamese refugee community is not appropriate. Again, an attorney’s

6 specialized expertise, “by itself,” is not sufficient to justify a fee enhancement.

7 Nadarajah, 569 F.3d at 913. Although Plaintiff is a Vietnamese refugee, nothing in

8 the administrative record or the record in these proceedings suggest his refugee

9 status is related to his alleged disabilities. Further, Plaintiff obtained a partial

10 remand based on the ALJ’s error in failing to consider evidence before a certain

11 date, not the nature of the evidence itself. Therefore, counsel’s specialized

12 knowledge of mental illness in the Vietnamese refugee community was not

13 necessary to the litigation, and an enhancement on this basis is not warranted.

14 For the foregoing reasons, the Court finds the reasonable hourly fee for

15 counsel’s work in this matter is as follows: $294.62 for 1.75 hours spent

16 communicating with Plaintiff in 2023, $244.62 for 41.3 hours spent on all other

17 litigation activities in 2023; $301.84 for 1 hour spent communicating with Plaintiff

18 in 2024; and $251.84 for 5 hours spent on litigation activities in 2024. Because the

19 Court largely denies Plaintiff’s request for an enhanced hourly rate, it does not

20 reach the issue of whether other counsel with similar skills were not available at

21 the statutory rate.

22 3. Adjustments

23 “The product of reasonable hours times a reasonable rate does not end [the

24 Court’s] inquiry.” Hensley, 461 U.S. at 434. The Court may in its discretion adjust

25 the award upward or downward after considering other factors, including but not

26 limited to the difficulty of the legal questions presented, the results obtained, and

27 the experience and reputation of the attorneys. See id. at 430 n.3. However, the

28 Court finds these considerations are already appropriately accounted for in the

1 foregoing discussion regarding counsel’s reasonable hours and reasonable hourly

2 rate, and does not impose any further adjustments to counsel’s fee.

3 C. Costs

4 Plaintiff also seeks reimbursement for costs his counsel incurred in the

5 litigation, as follows: $250 for “paralegal and delivery/translation services,” $175

6 for “copying costs,” and $70 for “mailing costs.” Manbeck Decl., ¶ 11. In support,

7 Plaintiff submits photocopies of two checks to Lanh Nguyen totaling $250. See

8 Dkt. No. 28-4. There is no documentation supporting the copying or mailing costs.

9 Paralegal services are compensable under fee-shifting statutes. See League of

10 Wilderness Defs., 305 F. Supp. 3d at 1170. But, as with attorneys, the paralegal’s

11 expended time must reasonable, exclude clerical tasks, and be sufficiently

12 documented to permit the Court’s review. See id. Here, the Court cannot

13 determine from the description “paralegal and delivery/translation services” or

14 the photocopied checks precisely what “services” the paralegal performed and

15 whether they are compensable under the Act. The information provided in

16 counsel’s declaration regarding other costs is similarly insufficient for the Court to

17 assess their reasonableness, and this lack of clarity is compounded by counsel’s

18 failure to provide documentation regarding her expenditures.

19 Because the party seeking fees bears the burden of supporting their request

20 with an itemized statement of expenditures, the Court denies Plaintiff’s request

21 for reimbursement of $495.00 in costs. 28 U.S.C. § 2412(d)(1)(B) (requiring

22 itemized statement from party’s legal representative); see also League of Wilderness

23 Defs., 305 F. Supp. 3d at 1170 (recognizing moving party’s burden to document

24 hours).

25 D. Whether Payment Should Be Made to Plaintiff or Counsel

26 Plaintiff requests that any fees awarded be paid directly to Plaintiff’s

27 counsel. Dkt. No. 28-1 at 24.

28 / / /

1 Fee awards under the EAJA must be made to the prevailing party, 28 U.S.C.

2 § 2412(d)(1)(A), and are subject to offset to satisfy any of the claimant’s “delinquent

3 federal debts.” Astrue v. Ratliff, 560 U.S. 586, 589 (2010). The Court in Ratliff

4 rejected the argument that EAJA fee awards can be paid directly to counsel,

5 finding the statutory text “forecloses the conclusion that attorneys have a right to

6 direct payment” of their fees. Id. at 594. Instead, the claimant may assign the fee

7 award to counsel, but only if “certain conditions” under the Anti-Assignment Act

8 are met. United States v. Kim, 806 F.3d 1161, 1169 (9th Cir. 2015) (citing 31 U.S.C.

9 § 3727). As set forth in the statute, a claim against the United States may be

10 assigned:

11 only after a claim is allowed, the amount of the claim is decided, and a

12 warrant for payment of the claim has been issued. The assignment

shall specify the warrant, must be made freely, and must be attested to

13

by 2 witnesses. The person making the assignment shall acknowledge

14

it before an official who may acknowledge a deed, and the official shall

15 certify the assignment. The certificate shall state that the official

completely explained the assignment when it was acknowledged. An

16

assignment under this subsection is valid for any purpose.

17

18 31 U.S.C. § 3727(b).

19 The Anti-Assignment Act “applies to an assignment of EAJA fees in a Social

20 Security Appeal for disability benefits.” Hill v. Comm'r of Soc. Sec., 428 F. Supp. 3d

21 253, 266 (E.D. Cal. 2019). Absent a compliant assignment by the claimant, any fees

22 awarded under the EAJA must be paid directly to the litigant. Kim, 806 F.3d at

23 1169-70. As the Kim court observed, due to the “obsolete” statutory requirements,

24 the government can “pick and choose which assignments it will accept and which

25 it will not.” Kim, 806 F.3d at 1169-70; see also Thomas v. Comm’r of Soc. Sec., No. 2:19-

26 CV-1774-DMC, 2024 WL 382466, at *5 (E.D. Cal. Feb. 1, 2024) (noting the

27 government’s “discretionary ability to reject assignment of any claims against it to

28 third parties under the Anti-Assignment Act”).

1 Plaintiff avers he does not have any outstanding federal debt, and

2 “request[s]” in his declaration that “the legal fees and costs be sent to attorney

3 Alexandra Manbeck.” See Plaintiff’s Declaration, Dkt. No. 28-2, at ¶ 9. Plaintiff’s

4 declaration was witnessed by Lanh Nguyen, who translated the document, and

5 notarized by Tom Huynh. See id. The Court finds this evinces an intention to

6 assign any EAJA fee award to Plaintiff’s counsel. The award shall therefore be

7 made payable directly to Plaintiff’s counsel, subject to any offset for federal debt

8 and the Commissioner’s waiver of the Anti-Assignment Act requirements. If the

9 Commissioner does not waive these requirements, payment shall be made to

10 Plaintiff, and not Plaintiff’s counsel.9

11 IV.

12 CONCLUSION

13 For the reasons explained above, the Court finds Plaintiff's Counsel

14 reasonably expended 52.05 hours litigating this case. The Court finds the

15 reasonable hourly rate for this work is $294.62 for 1.75 hours spent communicating

16 with Plaintiff in 2023, $244.62 for 41.3 hours spent on all other litigation activities

17 in 2023; $301.84 for 1 hour spent communicating with Plaintiff in 2024; and $251.84

18 for 5 hours spent on litigation activities in 2024. Accordingly, it is hereby

19 ORDERED:

20 1. Plaintiff’s motion for an award of fees pursuant to the Equal Access to

21 Justice Act [Dkt. No. 28] is GRANTED IN PART and DENIED IN PART;

22 2. Plaintiff is hereby awarded $12,179.44 in attorney’s fees; and

23 3. Plaintiff’s request for reimbursement of $495.00 in costs is denied; and

24

25

9 Plaintiff states in his reply brief that he is “mentally disabled and unable to

26

handle any large payments.” Dkt. No. 31 at 12. This motion is not the appropriate

27

vehicle to address such concerns, which in any event are not supported by the

28

1 4. The Commissioner shall determine whether Plaintiff's EAJA award is

2 ||subject to any offset for federal debt, and payment shall be made less any

3 ||appropriate offsets; and

4 5. If the Commissioner decides to accept the assignment of fees, payment

5 ||shall be made payable to Plaintiff's Counsel, Alexandra Manbeck, and otherwise

6 ||shall be made payable to Plaintiff; and

7 6. Payment shall be mailed to Plaintiff's Counsel, Alexandra Manbeck, at

8 || the following address:

9 Law Offices of Alexandra Manbeck

10 P.O. Box 827

State College, PA 16804

12 || IT IS SO ORDERED.

13 || Dated: April 28, 2025 ait ZL

14 Tb Loe. we

15 Hon. DavidD.Leshner

16 United States Magistrate Judge

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