ROBINSON v. BERRYHILL (2018)

ORDER

I

Background

Kimberly Anne Robison applied for Social Security disability benefits, and an Administrative Law Judge (“ALJ”) denied the application. See Robinson v. Colvin, 666 F. App'x 687, 687 & n.1 (9th Cir. 2016) (noting that appellant's last name is correctly spelled “Robison”). Robison appealed, and the district court affirmed the denial. Id. at 687. Robison filed appeal number 14-16794, and this court reversed the district court's judgment and remanded to the district court for further proceedings. Id.

After this court's remand, the district court remanded the action to the ALJ for further administrative proceedings. In the district court, Robison filed a motion for attorney's fees under the Equal Access to Justice Act (“EAJA”). See 28 U.S.C. § 2412(d). The district court denied the motion, and Robison filed this appeal number 17-16524. After Robison filed an opening brief on appeal, the government filed the parties' stipulation for an award of attorney's fees. This court construed the parties' stipulation for an award of attorney's fees as a motion for attorney's fees and costs, granted the motion, and referred to the Appellate Commissioner the determination of an appropriate amount of fees. See 9th Cir. R. 39-1.9.

II

Discussion

To determine the amount of a reasonable attorney's fee under EAJA, the court multiplies the number of hours reasonably expended on the litigation by a reasonable hourly rate. See Costa v. Comm'r of Soc. Sec. Admin., 690 F.3d 1132, 1135 (9th Cir. 2012). In the fee motion in the district court, Robison requested $ 19,168.25 in attorney's fees and $ 980.00 in costs for the district court proceedings and for appeal number 14-16794. In the opening brief in this court, Robison requested $ 1,711.11 in attorney's fees for appeal number 17-16524. Robison requested attorney's fees for work performed by Eric G. Slepian of Phoenix, Arizona at cost-of-living-adjusted EAJA statutory maximum hourly rates pursuant to Thangaraja v. Gonzales, 428 F.3d 870, 876-77 (9th Cir. 2005), and as posted on the court's website. See Statutory Maximum Rates Under EAJA, http://www.ca9.uscourts.gov/content/view.php?pk_id=0000000039. Robison also requested fees for work performed by a paralegal at $ 50.00 per hour. The paralegal hourly rate is in line with prevailing market hourly rates for paralegals. See Blum v. Stenson, 465 U.S. 886, 895 n.11, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984).

The parties stipulated to an award of $ 16,000 in attorneys fees and $ 1,453.52 in costs for the district court proceedings and for both appeals, which is less than the amount requested by Robison. A review of the district court and court of appeals dockets and pleadings, as well as the oral argument in appeal number 14-16794, shows that the stipulated amounts are reasonable for the work performed, and they are awarded. See Costa, 690 F.3d at 1135-37.

In the district court, Robison filed a complaint, a summons, a civil cover sheet, several motions for extensions of time, a motion for leave to file an oversize brief, an opening brief, a reply brief, a notice of appeal, and a representation statement. In appeal number 14-16794, Robison filed a mediation questionnaire, several motions for extensions of time, a 13,096-word opening brief, a 6,871-word reply brief, a letter regarding availability for oral argument, and an acknowledgment of hearing notice. Robison's attorney appeared at oral argument in San Francisco. After this court remanded to the district court, Robison filed a motion for attorney's fees, a motion for an extension of time, a reply to the government's opposition to the motion, a notice of appeal, and a representation statement. In appeal number 17-16524, Robison filed a mediation questionnaire, several motions for extensions of time, and a 10,730-word opening brief before the government filed the parties' stipulation for an award of fees.

III

Conclusion

Pursuant to the parties' stipulation and the Equal Access to Justice Act (“EAJA”), 24 U.S.C. § 2412(d), attorney's fees in the amount of $ 16,000.00 and costs in the amount of $ 1,453.52 are awarded in favor of Kimberly Anne Robison and against Nancy A. Berryhill, Acting Commissioner of the Social Security Administration. The parties agree that this EAJA award is without prejudice to Robison's right to seek attorney's fees under the Social Security Act, 42 U.S.C. 406(b), subject to the offset provision of EAJA. See 28 U.S.C. § 2412(c)(1).

Pursuant to the parties' stipulation, if the government determines that Robison does not owe a debt subject to offset under the Treasury Offset Program, 31 U.SC. § 3716(c), and the government agrees to waive the requirements of the Anti-Assignment Act, 31 U.S.C. § 3727, the government shall pay the EAJA award to Robison's attorney, Eric G. Slepian. If there is a debt owed under the Treasury Offset Program, the remaining EAJA award after offset will be paid by a check made out to Robison but delivered to Slepian.

The parties' stipulation is construed in part as an agreement to dismiss this appeal. See Fed. R. App. P. 42(b). Appeal number 17-16524 is DISMISSED. This order shall constitute the mandate.