Maloof v. Commissioner of Social Security

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA MISSOULA DIVISION

DEBORAH DEE MALOOF, CV 20-116-M—-DWM Plaintiff, Vs. ORDER KILOLO KIJAKAZI, Commissioner of Social Security, Defendant.

Plaintiff has filed a motion for attorney fees and costs pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412. (Doc. 18.) Plaintiff seeks attorney fees in the amount of $5,498.42 and seeks costs in the amount of $17.25. The Commissioner has indicated it does not oppose this motion. (Doc. 20.) Fees and costs may be awarded under the Equal Access to Justice Act when the plaintiff is the prevailing party and the United States’ position was not substantially justified. See Meier v. Colvin, 727 F.3d 867, 870 (9th Cir. 2013). Here, Plaintiff was granted relief, (Doc. 16), and the order granting such relief was

not appealed. Thus, Plaintiff is a prevailing party. Additionally, it is the government’s burden to show that its position was substantially justified, Meier, 727 F.3d at 870, and the Commissioner makes no attempt at substantial

justification here, (Doc. 20 at 2.) Thus, Plaintiff may be awarded fees under the Equal Access to Justice Act. Finally, “[i]t is the district court’s prerogative to determine whether a fee award is reasonable.” Schulz v. Saul, 798 F. App’x 142, 142 (9th Cir. 2020). Here, Plaintiff has provided an accounting of fees, (Doc. 19-1), and that accounting appears facially reasonable. Accordingly, IT IS ORDERED that Plaintiffs motion for fees in the amount of $5,498.42 and costs in the amount of $17.25 under the Equal Access to Justice Act, (Doc. 18), is GRANTED. IT IS FURTHER ORDERED that if, after receiving the Court’s Equal Access to Justice Act fee order, the Commissioner (1) determines upon effectuation of the Court’s fee order that Plaintiff does not owe a debt that is subject to offset under the Treasury Offset Program, (2) agrees to waive the requirements of the Anti-Assignment Act, and (3) is provided a valid assignment of fees executed by Plaintiff, the fees will be made payable to Plaintiff's attorney and mailed to Plaintiff's attorney’s office as follows: Rasmusson Law Offices, PLLC P.O. Box 7825 701 N. Washington Missoula, MT 59807 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 check for any remaining Equal Access to Justice Act fees after offset will be paid by a check made out to Plaintiff but delivered to Plaintiff's attorney’s office at the address stated above. DATED this Bay of September, 2021.

onald W. Molloy, District Judge United States District Court