Tuma v. Commissioner of Social Security Administration ( 2022 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Kimberly Dawn Tuma, No. CV-21-01052-PHX-JAT 10 Plaintiff, ORDER 11 v. 12 Commissioner of Social Security Administration, 13 Defendant. 14 15 Pending before the Court is a stipulation of the parties that Plaintiff be awarded 16 attorney’s fees under the Equal Access to Justice Act (“EAJA”). In the stipulation, the 17 Government states: “…such award should not be used as precedent in future cases, nor be 18 construed as a concession by the Commissioner that his original decision denying benefits 19 was not substantially justified.” (Doc. 22 at 2). 20 The Ninth Circuit Court of Appeals has explained: 21 Pursuant to the EAJA, we are required to award [Plaintiff] fees and other expenses incurred in connection with his civil action unless we find that the 22 position of the United States was “substantially justified” or that special circumstances make an award unjust. 28 U.S.C. § 2412(d)(1)(A). 23 The test for determining whether the Secretary’s position was substantially 24 justified under the EAJA is whether the position had a reasonable basis in both law and fact—that is, whether it was justified “to a degree that could 25 satisfy a reasonable person.” Pierce v. Underwood, 487 U.S. 552, 565 (1988); see also Barry v. Bowen, 825 F.2d 1324, 1330 (9th Cir. 1987). The 26 burden is on the Secretary to prove that his position was substantially justified. Id. 27 Russell v. Sullivan, 930 F.2d 1443, 1445 (9th Cir. 1991). 28 The Government’s failure to oppose fees, but simultaneously disclaim that it owes || fees under the EAJA, puts the Court in a difficult position. This case was remanded by stipulation of the parties (Docs. 19-20), and this Court has never evaluated either party’s 3 || positions. 4 Nonetheless, applying the test as articulated in Russell, the Court finds that the 5 || Government has failed to prove that its position was substantially justified or that special 6 || circumstances make an award unjust. 930 F.2d at 1445; see also Michele M. v. Saul, No. 19-CV-00272-JLB, 2020 WL 5203375, at *1 (S.D. Cal. Sept. 1, 2020). Additionally, the 8 || parties have stipulated that Plaintiff is the prevailing party. (Doc. 19). Finally, the parties □□ have stipulated that the requested fees are reasonable (no costs are sought in this case). 10 Accordingly, the Court finds that Plaintiff is entitled to EAJA fees. Therefore, 11 IT IS ORDERED granting the stipulation (Doc. 22) such that fees in the amount of $5,509.16 as authorized by 28 U.S.C. § 2412, and costs in the amount of $0 as authorized || by 28 U.S.C. § 1920, are awarded to Plaintiff subject to the terms of the stipulation. 14 IT IS FURTHER ORDERED that if, after receiving this Order, the Commissioner: 15 || (1) determines upon effectuation of this Order that Plaintiff does not owe a debt that is 16 || subject to offset under the Treasury Offset Program, and (2) agrees to waive the 17 || requirements of the Anti-Assignment Act, then the check for the fees awarded herein will 18 || be made payable to Plaintiffs attorney (based on counsel’s representation that Plaintiff signed an assignment (Doc. 22 at 2)). 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 be || paid by a check made out to Plaintiff but delivered to Plaintiff's attorney. 23 Dated this 3rd day of August, 2022. 24 25 26 a iC , C 97 _ James A. Teil Org Senior United States District Judge 28 _2-