Varela v. Commissioner of Social Security Administration ( 2021 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Allison Mae Varela, No. CV-18-01335-PHX-JAT 10 Plaintiff, ORDER 11 v. 12 Commissioner of Social Security Administration, 13 Defendant. 14 15 Pending before the Court is Plaintiff’s motion for attorney’s fees pursuant to the 16 Equal Access to Justice Act (“EAJA”). (Doc. 25). The time for the Government to respond 17 to the motion has run, and no response was filed. 18 “A litigant is entitled to attorneys’ fees under the EAJA if: ‘(1) he is the prevailing party; (2) the government fails to show that its position was 19 substantially justified or that special circumstances make an award unjust; and (3) the requested fees and costs are reasonable.’ Carbonell v. I.N.S., 429 20 F.3d 894, 898 (9th Cir. 2005) (citing Perez–Arellano v. Smith, 279 F.3d 791, 793 (9th Cir. 2002)); see also 28 U.S.C. § 2412(d)(1)(A).” 21 22 Michele M. v. Saul, No. 19-CV-00272-JLB, 2020 WL 5203375, at *1 (S.D. Cal. Sept. 1, 23 2020). 24 Here, as Plaintiff explained in her motion for fees, Plaintiff is the prevailing party. 25 (See Doc. 25). Further, the Government did not respond to the motion; thus, the 26 Government failed to rebut Plaintiff’s argument that the Government’s position was not 27 substantially justified. (See id.); Russell v. Sullivan, 930 F.2d 1443, 1445 (9th Cir. 1991) 28 (noting that the burden is on the Government to prove its position was substantially justified). 2 Finally, Plaintiff seeks $10,274.99 in attorney’s fee (no costs are sought). (Doc. □□ 25). The Court has reviewed both the motion for fees and the itemized fee statement and 4|| finds that the fees sought are reasonable for the work performed. The Government has not 5 || opposed this conclusion. 6 Based on the foregoing, 7 IT IS ORDERED granting the motion (Doc. 25) such that Plaintiff is awarded 8 || attorney’s fees under the Equal Access to Justice Act in the amount of $10,274.99.! No || costs have been requested by Plaintiff and therefore none are awarded. 10 IT IS FURTHER ORDERED that if, after receiving this Order, the Commissioner: 11 || (1) determines that Plaintiff does not owe a debt that is subject to offset under the Treasury Offset Program, and (2) agrees to waive the requirements of the Anti-Assignment Act, then 13 || the check for the fees awarded herein will be made payable to Plaintiff's attorney pursuant to the assignment executed by Plaintiff. However, if there is a debt owed under the || Treasury Offset Program, the Commissioner cannot agree to waive the requirements of the || Anti-Assignment Act, and any remaining Equal Access to Justice Act fees after offset will 17|| be paid by a check made out to Plaintiff but delivered to Plaintiff's attorney.” 18 Dated this 5th day of April, 2021. 19 20 i C 21 James A. Teilborg 22 Senior United States District Judge 23 24 25 ! The Court has awarded $10,274.99 because that is the amount reflected in the motion 26] and on the itemized fee statement. The Court has disregarded as a typographical error the 7 $10,247.99 sought in the proposed form of order. ? This award is without prejudice to Plaintiff seeking attorney fees under section 206(b) of 28 || the Social Security Act, 42 U.S.C. § 406(b), subject to the offset provisions of the EAJA. _2-