(SS) Gonzales 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 ROSEMARY GONZALES, Case No. 1:21-cv-01353-HBK 12 Plaintiff, ORDER GRANTING AWARD AND PAYMENT OF ATTORNEY’S FEES UNDER 13 v. THE EQUAL ACCESS TO JUSTICE ACT1 14 KILOLO KIJAKAZI, ACTING (Doc. No. 25) COMMISSIONER OF SOCIAL 15 SECURITY, 16 Defendant. 17 18 Pending before the Court is the Plaintiff’s motion for attorney fees filed on April 13, 2023. 19 (Doc. No. 25). Plaintiff requests an award attorney’s fees to Plaintiff’s attorney, Jonathan O. 20 Peña of Peña & Bromberg, PLC, in the amount of $5,268.96 pursuant to the Equal Access to 21 Justice Act (“EAJA”), 28 U.S.C. § 2412. (Id.). 22 On January 13, 2023, this Court granted the parties’ Stipulated Motion for Voluntary 23 Remand and remanded the case pursuant to sentence four of 42 U.S.C. § 405(g) to the 24 Commissioner for further administrative proceedings. (Doc. No. 23). Judgment was entered the 25 same day. (Doc. No. 24). Plaintiff now requests an award of fees as the prevailing party. See 28 26 U.S.C. § 2412(a) & (d)(1)(A); Fed. R. Civ. P. 54(d)(1); see 28 U.S.C. § 1920; cf. Shalala v. 27 1 Both parties have consented to the jurisdiction of a magistrate judge in accordance with 28 U.S.C. §636(c)(1). (Doc. No. 29). 28 1 | Schaefer, 509 U.S. 292, 300-02 (1993) (concluding that a party who wins a sentence-four remand 2 | order under 42 U.S.C. § 405(g) is a prevailing party). The Commissioner did not file any 3 || opposition to the request, and the deadline for doing so has passed. 4 The EAJA provides for an award of attorney fees to private litigants who both prevail in 5 | civil actions (other than tort) against the United States and timely file a petition for fees. 28 6 | U.S.C. § 2412(d)(1)(A). Under the Act, a court shall award attorney fees to the prevailing party 7 | unless it finds the government’s position was “substantially justified or that special circumstances 8 | make such an award unjust.” Jd. Here, the government did not show its position was 9 | substantially justified and the Court finds there are not special circumstances that would make an 10 | award unjust. 11 Plaintiff requests an award of $5,268.96 in EAJA fees for 22.5 hours of attorney time. 12 | (Doc. No. 25-2). The Court finds an award of $5,268.96 is appropriate. EAJA fees, expenses, 13 | and costs are subject to any offsets allowed under the Treasury Offset Program (“TOP”), as 14 | discussed in Astrue v. Ratliff, 532 U.S. 1192 (2010). If the Commissioner determines upon 15 | effectuation of this Order that Plaintiff's EAJA fees are not subject to any offset allowed under 16 | the TOP, the fees shall be delivered or otherwise transmitted to Plaintiff’s counsel. 17 Accordingly, it is ORDERED: 18 1. Plaintiffs motion for attorney fees and expenses (Doc. No. 25) is GRANTED. 19 2. The Commissioner is directed to pay to Plaintiff as the prevailing party EAJA fees in 20 | the amount of $5,268.96 in attorney fees. Unless the Department of Treasury determines that 21 | Plaintiff owes a federal debt, the government shall make payment of the fees to Plaintiff's 22 | counsel, Jonathan O. Pefia of Pefia & Bromberg, PLC, in accordance with Plaintiffs assignment 23 | of fees and subject to the terms of the stipulated motion. 24 °° | Dated: _ May 12, 2023 Mihaw. Wh. foareh fackte 6 HELENA M. BARCH-KUCHTA 4 UNITED STATES MAGISTRATE JUDGE 28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28