(SS) Lopez 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 JOHN PAUL LOPEZ, Case No. 1:20-cv-01755-HBK1 12 Plaintiff, ORDER GRANTING AWARD AND PAYMENT OF ATTORNEY FEES UNDER 13 v. THE EQUAL ACCESS TO JUSTICE ACT 14 KILOLO KIJAKAZI, ACTING (Doc. No. 23) COMMISSIONER OF SOCIAL 15 SECURITY, ORDER MOOTING EARLIER FILED MOTION FOR ATTORNEY FEES 16 Defendant. (Doc. No. 22) 17 18 19 20 21 Pending before the Court is the parties’ stipulated motion for award of attorney fees filed 22 on December 15, 2022. (Doc. No. 23). The parties agree to an award of attorney fees and 23 expenses to Plaintiff’s attorney, Jonathan O. Peña, in the amount of $5,100.00 pursuant to the 24 Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412. (Id.). The stipulated motion filed on 25 December 15, 2022 moots Plaintiff’s earlier filed motion seeking $5,532.05. (Doc. No. 22). 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. 10). 28 1 On September 14, 2022, this Court granted the parties’ stipulated motion to remand the 2 case pursuant to sentence four of 42 U.S.C. § 405(g) to the Commissioner for further 3 administrative proceedings. (Doc. No. 20). Judgment was entered the same day. (Doc. No. 21). 4 Plaintiff now requests an award of fees as the prevailing party. See 28 U.S.C. § 2412(a) & 5 (d)(1)(A); Fed. R. Civ. P. 54(d)(1); see 28 U.S.C. § 1920; cf. Shalala v. Schaefer, 509 U.S. 292, 6 300-02 (1993) (concluding that a party who wins a sentence-four remand order under 42 U.S.C. § 7 405(g) is a prevailing party). The Commissioner does not oppose the requested relief. (Doc. No. 8 23). 9 The EAJA provides for an award of attorney fees to private litigants who both prevail in 10 civil actions (other than tort) against the United States and timely file a petition for fees. 28 11 U.S.C. § 2412(d)(1)(A). Under the Act, a court shall award attorney fees to the prevailing party 12 unless it finds the government’s position was “substantially justified or that special circumstances 13 make such an award unjust.” Id. Here, the government did not show its position was 14 substantially justified and the Court finds there are not special circumstances that would make an 15 award unjust. 16 Based on the stipulation, the Court finds an award of $5,100.00 in attorney fees and 17 expenses is appropriate. EAJA fees, expenses, and costs are subject to any offsets allowed under 18 the Treasury Offset Program (“TOP”), as discussed in Astrue v. Ratliff, 532 U.S. 1192 (2010). If 19 the Commissioner determines upon effectuation of this Order that Plaintiff’s EAJA fees are not 20 subject to any offset allowed under the TOP, the fees shall be delivered or otherwise transmitted 21 to Plaintiff’s counsel. 22 Accordingly, it is ORDERED: 23 1. The stipulated motion for attorney fees and expenses (Doc. No. 23) is GRANTED. 24 2. Plaintiff’s earlier filed motion for attorney fees (Doc. No. 22) is MOOT. 25 3. The Commissioner is directed to pay to Plaintiff as the prevailing party EAJA fees in 26 the amount of $5,100.00 in attorney fees and expenses. Unless the Department of Treasury 27 determines that Plaintiff owes a federal debt, the government shall make payment of the EAJA 28 fees to Plaintiff’s counsel, Jonathan O. Peña, in accordance with Plaintiff’s assignment of fees 1 | and subject to the terms of the stipulated motion. 2 3 Dated: January 3, 2023 HLA, ZA. Aare Hack 4 HELENA M. BARCH-KUCHTA ; UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28