(SS) Diaz v. Commissioner of Social Security ( 2022 )

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 FOR THE EASTERN DISTRICT OF CALIFORNIA 8 9 ANTHONY DIAZ, Case No. 1:21-cv-00447-AWI-HBK 10 Plaintiff, ORDER GRANTING AWARD AND PAYMENT OF ATTORNEYS FEES 11 v. UNDER THE EQUAL ACCESS TO JUSTICE ACT 12 KILOLO KIJAKAZI, ACTING COMMISSIONER OF SOCIAL (Doc. No. 21) 13 SECURITY, 14 Defendant. 15 Pending before the Court is the Plaintiff’s motion for award of attorney’s fees filed on 16 October 11, 2022. Doc. No. 21. On October 28, 2022, the parties filed a stipulation agreeing to 17 an award of attorney’s fees to Plaintiff’s attorney, Jonathan O. Pena of Pena & Bromberg, PLC, 18 of $871.41 pursuant to the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412. Doc. No. 19 22. 20 On July 11, 2022, the court granted the parties’ stipulated motion for a remand and 21 remanded the case pursuant to sentence four of 42 U.S.C. § 405(g) to the Commissioner for 22 further administrative proceedings. Doc. No. 17. Judgment was entered the same day. Doc. No. 23 18. Plaintiff now requests an award of fees as the prevailing party. See 28 U.S.C. § 2412(a) & 24 (d)(1)(A); Fed. R. Civ. P. 54(d)(1); see 28 U.S.C. § 1920; cf. Shalala v. Schaefer, 509 U.S. 292, 25 300-02 (1993) (concluding that a party who wins a sentence-four remand order under 42 U.S.C. § 26 405(g) is a prevailing party). The Commissioner does not oppose the requested relief. Doc. No. 27 22. 28 1 The EAJA provides for an award of attorney fees to private litigants who both prevail in 2 | civil actions (other than tort) against the United States and timely file a petition for fees. 28 3 | U.S.C. § 2412(d)(1)(A). Under the Act, a court shall award attorney fees to the prevailing party 4 | unless it finds the government’s position was “substantially justified or that special circumstances 5 | make such an award unjust.” Jd. Here, the government did not show its position was 6 | substantially justified and the Court finds there are not special circumstances that would make an 7 | award unjust. 8 Based on the stipulation, the Court finds an award of $871.41 is appropriate. EAJA fees, 9 | expenses, and costs are subject to any offsets allowed under the Treasury Offset Program 10 | (“TOP”), as discussed in Astrue v. Ratliff, 532 U.S. 1192 (2010). If the Commissioner 11 | determines upon effectuation of this Order that Plaintiff's EAJA fees are not subject to any offset 12 | allowed under the TOP, the fees shall be delivered or otherwise transmitted to Plaintiff’s counsel. 13 Accordingly, IT IS HEREBY ORDERED that: 14 1. Plaintiff's motion for attorney fees and expenses (Doc. No. 21) is GRANTED; and 15 2. The Commissioner is directed to pay to Plaintiff as the prevailing party EAJA fees in 16 | the amount of $871.41 in attorney fees and expenses. Unless the Department of Treasury 17 | determines that Plaintiff owes a federal debt, the government shall make payment of the fees to 18 | Plaintiffs counsel, Jonathan O. Pena of Pena & Bromberg, PLC, in accordance with Plaintiff’s 19 | assignment of fees and subject to the terms of the stipulation. 20 21 | IT IS □□ ORDERED. 22 Dated: _ October 28, 2022 : : 33 "SENIOR DISTRICT JUDGE 24 25 26 27 28