Quintanilla v. Social Security Administration

Filing 29

ORDER by Magistrate Judge Kevin R. Sweazea granting 28 Stipulated Motion for Attorney Fees. (atc)

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UNITED STATES DISTRICT COURT for the DISTRICT OF NEW MEXICO JUAN FRANCISCO QUINTANILLA, JR., Plaintiff, vs. KILOLO KIJAKAZI, Acting Commissioner of Social Security,1 Defendant. ] ] ] ] ] ] ] ] ] ] Case No. 2:20-CV-01264-KRS ORDER Plaintiff’s Stipulated Motion for Fees Under the Equal Access to Justice Act (EAJA) is GRANTED. Defendant shall pay Plaintiff $2,152.80 in attorney fees. Payment of this amount shall constitute a complete release from and bar to any and all claims Plaintiff may have relating to EAJA fees in connection with this action. However, the EAJA award is without prejudice to Plaintiff’s attorney’s right to seek attorney fees pursuant to Social Security Act § 206(b), 42 U.S.C. § 406(b), subject to the offset provisions of the EAJA. See 28 U.S.C. § 2412(c)(1)(2006). Under Astrue v. Ratiff, 130 S.Ct 2521, 2528-29 (2010), EAJA fees awarded by this Court belong to the Plaintiff and are subject to offset under the Treasury Offset Program (31 U.S.C. § 3716(c)(3)(B)(2006)). This Court therefore orders the EAJA fees to be paid to Plaintiff. If, after receiving the Court’s EAJA fee order, the Commissioner (1) determines the Plaintiff has properly assigned his right to EAJA fees to his attorney; (2) determines that Plaintiff does not 1 Kilolo Kijakazi became the Acting Commissioner of Social Security on July 9, 2021. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Kilolo Kijakazi should be substituted, therefore, for Andrew Saul as the defendant in this suit. No further action need be taken to continue this suit by reason of the last sentence of section 205(g) of the Social Security Act, 42 U.S.C. § 405(g). Page 1 of 2 owe a debt that is subject to offset under the Treasury Offset Program; and (3) agrees to waive the requirements of the Anti-Assignment Act, then the EAJA fees will be made payable to Plaintiff’s attorney. However, if there is a debt owed under the Treasury Offset Program, the Commissioner cannot agree to waive the requirements of the Anti-Assignment Act, and the remaining EAJA fees after offset will be paid by a check made out to Plaintiff but delivered to Plaintiff’s attorney. ___________________________________ THE HONORABLE KEVIN R. SWEAZEA United States Magistrate Judge Respectfully Submitted: Attorney for Plaintiff: Approved via e-mail July 9, 2021 JAIME F. RUBIN, Esq. Attorney for Francisco Quintanilla Jr. P.O. Drawer 151 Truth or Consequences, NM 87901 575.894.3031 Fax: 575.894.3282 jrubin@zianet.com Attorneys for Defendant: FRED J. FEDERICI Acting United States Attorney s/ M. Thayne Warner            M. THAYNE WARNER Special Assistant United States Attorney Office of the General Counsel Social Security Administration 1961 Stout Street, Suite 4169 Denver, CO 80294-4003 (303) 844-2149 thayne.warner@ssa.gov Page 2 of 2

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