(SS) Ortega v. Commissioner of Social Security ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MARIA TARESLI ORTEGA, Case No. 1:22-cv-01058-HBK 12 Plaintiff, ORDER GRANTING AWARD AND PAYMENT OF ATTORNEYS FEES UNDER 13 v. THE EQUAL ACCESS TO JUSTICE ACT AND MOOTING EARLIER FILED MOTION1 14 KILOLO KIJAKAZI, ACTING COMMISSIONER OF SOCIAL (Doc. Nos. 16, 17) 15 SECURITY, 16 Defendant. 17 18 Pending before the Court is the parties’ corrected2 stipulated motion for attorney fees filed 19 on March 22, 2023. (Doc. No. 17). The parties agree to an award of attorney’s fees and expenses 20 to Plaintiff’s attorney, Andrew K. Shaffer of Borah & Shaffer, in the amount of $2,638.99 21 pursuant to the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412, and costs in the amount 22 of $402.00 under 28 U.S.C. § 1920. (Id.). 23 On February 16, 2023, this Court granted the parties’ Stipulated Motion for Voluntary 24 Remand and remanded the case pursuant to sentence four of 42 U.S.C. § 405(g) to the 25 Commissioner for further administrative proceedings. (Doc. No. 14). Judgment was entered the 26 1 Both parties have consented to the jurisdiction of a magistrate judge in accordance with 28 U.S.C. 27 §636(c)(1). (Doc. No. 8). 2 The same day an earlier motion was filed with an incorrect case number. (Doc. No. 16). The later filed 28 motion moots the earlier motion. 1 | same day. (Doc. No. 15). Plaintiff now requests an award of fees as the prevailing party. See 28 2 | US.C. § 2412(a) & (d)(1)(A); Fed. R. Civ. P. 54(d)(1); see 28 U.S.C. § 1920; cf. Shalala v. 3 | Schaefer, 509 U.S. 292, 300-02 (1993) (concluding that a party who wins a sentence-four remand 4 | order under 42 U.S.C. § 405(g) is a prevailing party). The Commissioner does not oppose the 5 | requested relief. (Doc. No. 16). 6 The EAJA provides for an award of attorney fees to private litigants who both prevail in 7 | civil actions (other than tort) against the United States and timely file a petition for fees. 28 8 | U.S.C. § 2412(d)(1)(A). Under the Act, a court shall award attorney fees to the prevailing party 9 | unless it finds the government’s position was “substantially justified or that special circumstances 10 | make such an award unjust.” Jd. Here, the government did not show its position was 11 | substantially justified and the Court finds there are not special circumstances that would make an 12 | award unjust. Based on the stipulation, the Court finds an award of $2,638.99 in attorney fees 13 | and expenses, and $402.00 in costs, is appropriate. EAJA fees, expenses, and costs are subject to 14 | any offsets allowed under the Treasury Offset Program (“TOP”), as discussed in Astrue v. Ratliff, 15 532 U.S. 1192 (2010). If the Commissioner determines upon effectuation of this Order that 16 | Plaintiff's EAJA fees are not subject to any offset allowed under the TOP, the fees shall be 17 | delivered or otherwise transmitted to Plaintiff’s counsel. 18 Accordingly, it is ORDERED: 19 1. The parties’ stipulated motion for attorney fees and costs (Doc. No. 17) is GRANTED 20 | which moots the earlier filed motion (Doc. No. 16). 21 2. The Commissioner is directed to pay to Plaintiff as the prevailing party EAJA fees in 22 | the amount of $ $2,638.99 in attorney fees and $ 402.00 in costs. Unless the Department of 23 | Treasury determines that Plaintiff owes a federal debt, the government shall make payment of the 24 | fees to Plaintiff’s counsel, Andrew K. Shaffer of Borah & Shaffer, in accordance with Plaintiffs 25 | assignment of fees and subject to the terms of the stipulated motion. | Dated: _ March 23, 2023 Mihaw. Wh. foareh fackte 27 HELENA M. BARCH-KUCHTA 38 UNITED STATES MAGISTRATE JUDGE