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

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KAREN M. GONZALES, Case No. 1:21-cv-01008-ADA-HBK1 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO GRANT PLAINTIFF’S MOTION FOR 13 v. ATTORNEY FEES UNDER THE EQUAL ACCESS TO JUSTICE ACT 14 KILOLO KIJAKAZI, ACTING COMMISSIONER OF SOCIAL FOURTEEN-DAY OBJECTION PERIOD 15 SECURITY, (Doc. No. 28) 16 Defendant. 17 18 Pending before the Court is the Plaintiff’s motion for award of attorney’s fees filed on 19 November 7, 2022. (Doc. No. 28). Plaintiff’s attorney, Jonathan O. Peña, requests attorney fees 20 and expenses in the amount of $7,697.04, pursuant to the Equal Access to Justice Act (“EAJA”), 21 28 U.S.C. § 2412. (Id.). The Commissioner has not responded to Plaintiff’s motion, and the 22 deadline for doing so has passed. For the reasons set forth more fully below, the undersigned 23 recommends the district court grant Plaintiff’s motion for EAJA attorney fees. 24 On August 5, 2022, this Court granted the parties’ stipulated motion to remand the case 25 pursuant to sentence four of 42 U.S.C. § 405(g) to the Commissioner for further administrative 26 1 This matter was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302 27 (E.D. Cal. 2022). 28 1 proceedings. (Doc. No. 26). Judgment was entered the same day. (Doc. No. 27). Plaintiff now 2 requests an award of fees as the prevailing party. See 28 U.S.C. § 2412(a) & (d)(1)(A); Fed. R. 3 Civ. P. 54(d)(1); see 28 U.S.C. § 1920; cf. Shalala v. Schaefer, 509 U.S. 292, 300-02 (1993) 4 (concluding that a party who wins a sentence-four remand order under 42 U.S.C. § 405(g) is a 5 prevailing party). The Commissioner has filed no objection to Plaintiff’s motion for EAJA fees. 6 (See docket). 7 The EAJA provides for an award of attorney fees to private litigants who both prevail in 8 civil actions (other than tort) against the United States and timely file a petition for fees. 28 9 U.S.C. § 2412(d)(1)(A). Under the Act, a court shall award attorney fees to the prevailing party 10 unless it finds the government’s position was “substantially justified or that special circumstances 11 make such an award unjust.” Id. Here, the government did not show its position was 12 substantially justified and the Court finds there are not special circumstances that would make an 13 award unjust. 14 Plaintiff requests an award of $7,697.04 in EAJA fees. (Doc. No. 28). Plaintiff’s request 15 is based on 33.25 attorney hours in 2022 at the rate of $231.49 per hour. (Doc. No. 28-1). The 16 Court finds an award of $7,697.04 in attorney’s fees and expenses is appropriate. EAJA fees, 17 expenses, and costs are subject to any offsets allowed under the Treasury Offset Program 18 (“TOP”), as discussed in Astrue v. Ratliff, 532 U.S. 1192 (2010). If the Commissioner determines 19 upon effectuation of this Order that Plaintiff’s EAJA fees are not subject to any offset allowed 20 under the TOP, the fees shall be delivered or otherwise transmitted to Plaintiff’s counsel. 21 Accordingly, it is RECOMMENDED: 22 1. Plaintiff’s motion for EAJA attorney’s fees and expenses (Doc. No. 28) be 23 GRANTED. 24 2. The Commissioner be directed to pay to Plaintiff as the prevailing party EAJA fees in 25 the amount of $7,697.04 in attorney’s fees and expenses. Unless the Department of 26 Treasury determines that Plaintiff owes a federal debt, the government shall make 27 payment of the EAJA fees to Plaintiff’s counsel, Jonathan O. Peña, in accordance with 28 Plaintiff’s assignment of fees. 1 NOTICE TO PARTIES 2 These findings and recommendations will be submitted to the United States district judge 3 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen (14) 4 | days after being served with these findings and recommendations, a party may file written 5 | objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 6 | Findings and Recommendations.” Parties are advised that failure to file objections within the 7 | specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 8 | 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 9 Dated: _ December 13, 2022 Wile. Th fares Zack 11 HELENA M. BARCH-KUCHTA UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28