Cardona v. Commissioner of Social Security

• Court: District Court, W.D. Texas
• Decided: April 11, 2023
• Docket: 3:21-cv-00142
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS EL PASO DIVISION

ALBERTO CARDONA, § § Plaintiff, § v. § § EP-21-CV-00142-DCG KILOLO KIJAKAZI, in her official § capacity as Acting Commissioner of the § Social Security Administration, § § Defendant. § ORDER ACCEPTING REPORT AND RECOMMENDATION After prevailing in his appeal of Defendant Kilolo Kijakazi’s decision to deny his claim for disability insurance benefits and supplemental security income, see Mem. Op., ECF No. 20, Plaintiff Alberto Cardona moved for an award of (1) $5,219.69 in attorney’s fees; (2) $17.58 in expenses; and (3) $402 in costs, Mot., ECF No. 22; Mem. Support, ECF No. 23. The Court referred Plaintiff’s Motion to United States Magistrate Judge Robert F. Castañeda for a report and recommendation, see Standing Referral Order,1 which he issued on March 17, 2023, see R. & R., ECF No. 25. Neither Plaintiff nor Defendant objected to Judge Castañeda’s recommendations.2 The Court ACCEPTS Judge Castañeda’s Report and Recommendation.

1 Standing Order Referring Social Security Cases (May 3, 2012), available at https://www.txwd.uscourts.gov/wp-content/uploads/2022/12/Standing-Order-Referring-Social-Security- Cases.pdf.

2 The parties had “14 days after being served with a copy of the recommended disposition” to “file specific written objections to [Judge Castañeda’s] proposed findings and recommendations.” FED. R. CIV. P. 72(b)(2); see also 28 U.S.C. § 636(b)(1); R. & R. at 5 (warning parties that “failure to file I. STANDARD OF REVIEW When reviewing a magistrate judge’s report and recommendation, the district court “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1); see also FED. R. CIV. P. 72(b)(3). Where, as here, no

party objects to the report and recommendation, the district court reviews it solely for clear error, an abuse of discretion, or conclusions that are contrary to law. United States v. Wilson, 864 F.2d 1219, 1221 (5th Cir. 1989); Morales v. Carrillo, --- F. Supp. 3d ----, 2022 WL 4075254, at *5 (W.D. Tex. Sept. 2, 2022). A report and recommendation is, for example, clearly erroneous when a court “is left with the definite and firm conviction that a mistake has been made.” Fisher v. Lufkin Indus., Inc., 847 F.3d 752, 759 (5th Cir. 2017) (quotation omitted). II. THE REPORT AND RECOMMENDATION Plaintiff seeks (1) $5,219.69 in attorney’s fees; (2) $17.58 in expenses; and (3) $402 in costs under the Equal Access to Justice Act (EAJA). Mot. at 1; see also 28 U.S.C. § 2412. Invoking his purported assignment of any EAJA award in this case, Plaintiff asks the Court to

award the fees, expenses, and costs directly to his attorney, Howard D. Olinsky. Mot. at 1; Assignment, Mem. Support Ex. A, ECF No. 23-1; see also R. & R. at 1. Defendant does not dispute that Plaintiff is entitled to the EAJA award he seeks. Resp., ECF No. 24, at 1. Defendant does, however, ask that the Court reject Plaintiff’s request that the award be paid directly to his attorney. Id. at 1–3; see also R. & R. at 2–4.

written objections to the proposed findings, conclusions, and recommendations . . . within fourteen days of service of same, may bar de novo determination by the district judge of an issue covered”). Plaintiff and Defendant received notice of the Report and Recommendation via the Court’s CM/ECF system the day Judge Castañeda issued it, see Filing Receipt, ECF No. 25, so their deadline to object expired on March 31, 2023. Judge Castafieda held that Plaintiff “is entitled to an EAJA award” and that his request is reasonable. R. & R. at 2 (citing 28 U.S.C. § 2412(a), (d)(2)(A)). But Judge Castafieda concluded that Plaintiff's EAJA award should be paid directly to him, not his attorney. /d. at 2— 3; see also, e.g., Dieckow v. Saul, No. 5-19-CV-796-RBF, 2020 WL 13441547, at *3 (W.D. Tex. July 17, 2020) (“Whether the Commissioner pays the fees award to [a plaintiff] directly or in care of [his] counsel is left to the Commissioner’s discretion.”’). Il. CONCLUSION Having carefully reviewed Judge Castafieda’s Report and Recommendation, the Court concludes that his findings are not clearly erroneous or contrary to law, and that he did not abuse his discretion. See Wilson, 864 F.2d at 1221. Accordingly, the Court ACCEPTS Judge Castafieda’s “Report and Recommendation” (ECF No. 25) and GRANTS IN PART and DENIES IN PART Plaintiff Alberto Cardona’s “Motion for Attorney’s Fees Pursuant to the Equal Access to Justice Act” (ECF No. 22). The Court GRANTS Plaintiffs request for (1) $5,219.69 in attorney’s fees; (2) $17.58 in expenses; and (3) $402 in costs. The Court DENIES Plaintiff’s request that the award be made payable directly to his attorney. The award shall be made payable to Plaintiff and mailed to Plaintiffs attorney at the attorney’s address on record. So ORDERED and SIGNED this 11th day of April 2023. ofl Lo UNITED STATES DISTRICT JUDGE

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