McPherson v. Commissioner of Social Security Administration

Opinion

1 WO 2 3 4 5

9 Denise McPherson, No. CV-20-08202-PCT-JAT

10 Plaintiff, ORDER

11 v.

12 Commissioner of Social Security Administration, 13 Defendant. 14 15 Pending before the Court is Plaintiff’s motion for attorney’s fees pursuant to the 16 Equal Access to Justice Act (“EAJA”). (Doc. 30). The time for the Government to respond 17 to the motion has run, and no response was filed. 18 “A litigant is entitled to attorneys’ fees under the EAJA if: ‘(1) he is the prevailing party; (2) the government fails to show that its position was 19 substantially justified or that special circumstances make an award unjust; and (3) the requested fees and costs are reasonable.’ Carbonell v. I.N.S., 429 20 F.3d 894, 898 (9th Cir. 2005) (citing Perez–Arellano v. Smith, 279 F.3d 791, 793 (9th Cir. 2002)); see also 28 U.S.C. § 2412(d)(1)(A).” 21 22 Michele M. v. Saul, No. 19-CV-00272-JLB, 2020 WL 5203375, at *1 (S.D. Cal. Sept. 1, 23 2020). 24 Here, as Plaintiff explained in the motion for fees, Plaintiff is the prevailing party. 25 (See Doc. 30). Further, the Government did not respond to the motion; thus, the 26 Government failed to rebut Plaintiff’s argument that the Government’s position was not 27 substantially justified. (See id.); Russell v. Sullivan, 930 F.2d 1443, 1445 (9th Cir. 1991) 28 (noting that the burden is on the Government to prove its position was substantially □□ justified). The Government also failed to rebut Plaintiff's assertion that no special □□ circumstances would make an award unjust. See (Doc. 30 at 2). 3 Plaintiff seeks $7,626.26 in attorney’s fees and $420.40 in costs. (Doc. 30 at 2). 4|| The Court has reviewed both the motion for fees and the itemized fee statement and finds || that the fees sought are reasonable for the work performed. The Government has not 6 || opposed this conclusion. 7 Based on the foregoing, 8 IT IS ORDERED granting the motion (Doc. 30) such that fees and expenses in the 9|| amount of $7,626.26 as authorized by 28 U.S.C. § 2412, and costs in the amount of $420.40 10 || as authorized by 28 U.S.C. § 1920 are awarded. 11 IT IS FURTHER ORDERED that if, after receiving this Order, the Commissioner: 12 || (1) determines that Plaintiff does not owe a debt that is subject to offset under the Treasury 13} Offset Program, and (2) agrees to waive the requirements of the Anti-Assignment Act, then the check for the fees awarded herein will be made payable to Plaintiff's attorney pursuant 15 || to the assignment executed by Plaintiff. 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 any remaining Equal Access to Justice Act fees after offset will 18 || be paid by a check made out to Plaintiff but delivered to Plaintiffs attorney. 19 Dated this 22nd day of October, 2021. 20 21 a 3 22 James A. Teilborg 23 Senior United States District Judge 24 25 26 27 28

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