Dubrava v. Commissioner of Social Security

Opinion

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5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 8 MARGARYTA DUBRAVA, 9 Plaintiff, Case No. C24-1595-MLP 10 v. ORDER 11 COMMISSIONER OF SOCIAL SECURITY, 12 Defendant. 13

14 On March 6, 2025, Plaintiff filed an unopposed motion for Equal Access to Justice Act 15 (“EAJA”) fees and costs. (Dkt. # 16.) EAJA provides that “[a] party seeking an award of fees 16 and other expenses shall,” in addition to other requirements, “allege that the position of the 17 United States was not substantially justified.” 28 U.S.C. § 2412(d)(1)(B). This sentence 18 “requir[es] the applicant simply to ‘allege’ that the position of the United States was not 19 substantially justified.” Scarborough v. Principi, 541 U.S. 401, 408 (2004); see also Grendler v. 20 Kijakazi, 2023 WL 144157, at *1 (D. Or. Jan. 10, 2023) (denying without prejudice EAJA fee 21 petition lacking an allegation that the government’s position was not substantially justified 22 because “the Court will not infer matters that are mandated under statute to be expressly included 23 1 in the fee petition.”). Here, Plaintiff’s motion does not allege that the government’s position was 2 not substantially justified as requires. 3 Plaintiff’s motion also requests that EAJA fees be made payable to Plaintiff’s counsel. 4 (Dkt. # 16 at 2.) Generally, EAJA fees are payable first to Plaintiff and are subject to an offset

5 against any pre-existing debt Plaintiff owes to the government. See Astrue v. Ratliff, 560 U.S. 6 586, 593 (2010). However, district courts in the Ninth Circuit recognize an exception allowing 7 direct payment to Plaintiff’s counsel where (1) the government determines no debt is owed, and 8 (2) Plaintiff has validly assigned her right to EAJA fees to her counsel. See, e.g., Kirk v. 9 Berryhill, 244 F. Supp. 3d 1077, 1085 (E.D. Cal. Mar. 22, 2017) (collecting district court cases 10 from the Ninth Circuit permitting payment of EAJA fees directly to plaintiff’s counsel under 11 these conditions). In this case, no assignment agreement has been brought to the Court’s 12 attention. Therefore, if Plaintiff or Plaintiff’s attorney prefers that payment be made directly to 13 the attorney, they must first provide such an assignment agreement. 14 For the foregoing reasons, the Court DENIES the motion (dkt. # 16) without prejudice

15 and with leave to file an amended petition that cures the identified deficiencies. 16 Dated this 21st day of March, 2025. 17 18 A 19 MICHELLE L. PETERSON United States Magistrate Judge 20 21 22 23