(SS) McKenzie v. Commissioner of Social Security

• Court: District Court, E.D. California
• Decided: October 21, 2024
• Docket: 1:23-cv-01760
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 NICOLE MCKENZIE, Case No. 1:23-cv-01760-HBK1 12 Plaintiff, ORDER GRANTING AWARD AND PAYMENT OF ATTORNEYS FEES UNDER 13 v. THE EQUAL ACCESS TO JUSTICE ACT 14 MARTIN O’MALLEY, (Doc. No. 24) COMMISSIONER OF SOCIAL 15 SECURITY, 16 Defendant. 17 18 Pending before the Court is the parties’ stipulated motion for award of attorney’s fees 19 filed on October 16, 2024. (Doc. No. 24). The parties agree to an award of attorney’s fees and 20 expenses to Plaintiff’s attorney, Jonathan O. Peña of Peña & Bromberg, PLC, in the amount of 21 $5,800.00 in attorney fees and expenses, pursuant to the Equal Access to Justice Act (“EAJA”), 22 28 U.S.C. § 2412. (Id.). 23 On July 17, 2024, this Court granted the parties’ stipulated motion for a remand and 24 remanded the case pursuant to sentence four of 42 U.S.C. § 405(g) to the Commissioner for 25 further administrative proceedings. (Doc. No. 22). Judgment was entered the same day. (Doc. 26 1 Both parties have consented to the jurisdiction of a magistrate judge in accordance with 28 U.S.C. 27 §636(c)(1). (Doc. No. 10).

28 1 | No. 23). Plaintiff now requests an award of fees as the prevailing party. See 28 U.S.C. § 2412(a) 2 | & (d)(1)(A); Fed. R. Civ. P. 54(d)(1); see 28 U.S.C. § 1920; cf. Shalala v. Schaefer, 509 U.S. 3 | 292, 300-02 (1993) (concluding that a party who wins a sentence-four remand order under 42 4 | U.S.C. § 405(g) is a prevailing party). The Commissioner does not oppose the requested relief. 5 The EAJA provides for an award of attorney fees to private litigants who both prevail in 6 | civil actions (other than tort) against the United States and timely file a petition for fees. 28 7 | U.S.C. § 2412(d)C1)(A). Under the Act, a court shall award attorney fees to the prevailing party 8 | unless it finds the government’s position was “substantially justified or that special circumstances 9 | make such an award unjust.” Jd. Here, the government did not show its position was 10 | substantially justified and the Court finds there are not special circumstances that would make an 11 | award unjust. 12 Based on the stipulation, the Court finds an award of $5,800.00 in attorney fees and 13 || expenses is appropriate. EAJA fees, expenses, and costs are subject to any offsets allowed under 14 | the Treasury Offset Program (“TOP”), as discussed in Astrue v. Ratliff, 532 U.S. 1192 (2010). If 15 | the Commissioner determines upon effectuation of this Order that Plaintiff's EAJA fees are not 16 || subject to any offset allowed under the TOP, the fees shall be delivered or otherwise transmitted 17 | to Plaintiff's counsel. 18 Accordingly, it is ORDERED: 19 1. The stipulated motion for attorney fees and expenses (Doc. No. 24) is GRANTED. 20 2. The Commissioner is directed to pay to Plaintiff as the prevailing party EAJA fees in 21 | the amount of $5,800.00 in attorney fees and expenses. Unless the Department of Treasury 22 || determines that Plaintiff owes a federal debt, the government shall make payment of the EAJA 23 || fees to Plaintiff's counsel, Jonathan O. Pefia of Pefia & Bromberg, PLC, in accordance with 24 | Plaintiffs assignment of fees and subject to the terms of the stipulated motion. | Dated: _ October 21, 2024 Mihaw. Wh. foareh fackte 26 HELENA M. BARCH-KUCHTA 4 UNITED STATES MAGISTRATE JUDGE