(SS) Riott v. Commissioner of Social Security
Filing
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ORDER GRANTING 23 AWARD AND PAYMENT OF ATTORNEYS FEES UNDER THE EQUAL ACCESS TO JUSTICE ACT, signed by District Judge Anthony W. Ishii on 11/21/2022. (Apodaca, P)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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MONICA VIVIENNE RIOTT,
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Plaintiff,
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v.
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KILOLO KIJAKAZI, ACTING
COMMISSIONER OF SOCIAL
SECURITY,
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Case No. 1:21-cv-00678-AWI-HBK
ORDER GRANTING AWARD AND
PAYMENT OF ATTORNEYS FEES
UNDER THE EQUAL ACCESS TO
JUSTICE ACT
(Doc. No. 23)
Defendant.
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Pending before the Court is the parties’ stipulated motion for the award and payment of
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attorney fees filed on November 2, 2022. Doc. No. 23. The parties agree to an award of
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attorney’s fees and expenses to Plaintiff’s attorney, Jonathan O. Pena, in the amount of $6,500.00,
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and costs in the amount of $400.00, pursuant to the Equal Access to Justice Act (“EAJA”), 28
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U.S.C. § 2412. (Id.).
On July 28, 2022, this Court adopted findings and recommendations to grant the parties’
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stipulated motion to remand pursuant to sentence four of 42 U.S.C. § 405(g) to the Commissioner
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for further administrative proceedings. Doc. No. 19. Judgment was entered the same day. Doc.
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No. 20. Plaintiff now requests an award of fees as the prevailing party.1 See 28 U.S.C. § 2412(a)
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& (d)(1)(A); Fed. R. Civ. P. 54(d)(1); see 28 U.S.C. § 1920; cf. Shalala v. Schaefer, 509 U.S. 292,
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300-02 (1993) (concluding that a party who wins a sentence-four remand order under 42 U.S.C. §
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405(g) is a prevailing party).
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Plaintiff initially filed a motion on October 26, 2022, requesting EAJA fees in the amount of $7,250.09. Doc. No.
21. Subsequently, the parties filed the instant stipulated motion for EAJA fees in the amount of $6,500.00 and costs
in the amount of $400.00. Doc. No. 23.
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The EAJA provides for an award of attorney fees to private litigants who both prevail in
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civil actions (other than tort) against the United States and timely file a petition for fees. 28
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U.S.C. § 2412(d)(1)(A). Under the Act, a court shall award attorney fees to the prevailing party
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unless it finds the government’s position was “substantially justified or that special circumstances
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make such an award unjust.” Id. Here, the government did not show its position was
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substantially justified and the Court finds there are not special circumstances that would make an
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award unjust.
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Plaintiff requests an award of $6,500.00 in EAJA attorney fees, and $400.00 in costs.
Doc. No. 23. The Court finds an award of $6,500.00 in attorney’s fees and $400.00 in costs is
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appropriate. EAJA fees, expenses, and costs are subject to any offsets allowed under the
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Treasury Offset Program (“TOP”), as discussed in Astrue v. Ratliff, 532 U.S. 1192 (2010). If the
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Commissioner determines upon effectuation of this Order that Plaintiff’s EAJA fees are not
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subject to any offset allowed under the TOP, the fees shall be delivered or otherwise transmitted
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to Plaintiff’s counsel.
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Accordingly, IT IS HEREBY ORDERED that:
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The stipulated motion for attorney fees and costs (Doc. No. 23) is GRANTED.
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2.
Plaintiff’s motion for EAJA fees (Doc. No. 21) is MOOT.
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3.
The Commissioner is directed to pay to Plaintiff as the prevailing party EAJA fees
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in the amount of $6,500.00 in attorney fees and $400.00 in costs; and
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Unless the Department of Treasury determines that Plaintiff owes a federal debt,
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the government shall make payment of the fees to Plaintiff’s counsel, Jonathan O.
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Pena, in accordance with Plaintiff’s assignment of fees and subject to the terms of
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the stipulated motion.
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IT IS SO ORDERED.
Dated: November 21, 2022
SENIOR DISTRICT JUDGE
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