Ortega v. Kijakazi

Full title: RUPERT J. ORTEGA, Plaintiff, v. KILOLO KIJAKAZI, [1] Commissioner of the…

Court: United States District Court, District of New Mexico

Date published: Mar 15, 2022

CV 20-1245 CG (D.N.M. Mar. 15, 2022)

Opinion

CV 20-1245 CG

03-15-2022

RUPERT J. ORTEGA, Plaintiff, v. KILOLO KIJAKAZI, [1] Commissioner of the Social Security Administration, Defendant.

HONORABLE CARMEN E. GARZA CHIEF UNITED STATES MAGISTRATE JUDGE

ORDER GRANTING UNOPPOSED MOTION TO AWARD ATTORNEY FEES UNDER THE EQUAL ACCESS TO JUSTICE ACT

HONORABLE CARMEN E. GARZA CHIEF UNITED STATES MAGISTRATE JUDGE

THIS MATTER is before the Court on the Plaintiff Rupert J. Ortega's Opposed Motion for Attorney Fees Pursuant to the Equal Access to Justice Act, with Memorandum in Support (the “Motion”), (Doc. 37), filed March 3, 2022; and the Commissioner's Response to Plaintiff's Motion for Attorney Fees Pursuant to the Equal Access to Justice Act (the “Response”), (Doc. 38), filed March 14, 2022. The Motion states “[t]he Commissioner opposes the [M]otion.” (Doc. 37 at 2). However, the Commissioner's Response indicates that “the parties, through their respective counsels, have [since] agreed to a compromise settlement of Plaintiff's request for [Equal Access to Justice Act (“EAJA”)] fees.” (Doc. 38 at 1).

The parties agree that Mr. Ortega, by his attorney Laura J. Johnson, Esq., should be awarded $7,500.00 in attorney fees. Id. Further, the parties agree that “[p]ayment of this amount shall constitute a complete release from and bar to any and all claims Plaintiff may have relating to EAJA fees in connection with this action[, ]” and that “the EAJA award is without prejudice to Plaintiffs attorney's right to seek attorney fees pursuant to Social Security Act § 206(b), 42 U.S.C. § 406, subject to the offset provisions of the EAJA.” Id. The Court, having reviewed the Motion under EAJA, 28 U.S.C. § 2412, and noting that the Motion is unopposed, finds the Motion is well-taken and shall be granted.

IT IS THEREFORE ORDERED that Plaintiff be awarded $7,500.00 in attorney fees pursuant to EAJA, 28 U.S.C. § 2412, made payable to Plaintiff but mailed to Plaintiff's attorney. See Astrue v. Ratliff, 560 U.S. 586 (2010) (EAJA fees are paid to the prevailing party, not the attorney).

IT IS FURTHER ORDERED that if Plaintiff's counsel receives attorney fees under both the EAJA and 42 U.S.C. § 406(b) of the Social Security Act, Plaintiff's counsel shall refund the smaller award to Plaintiff pursuant to Weakley v. Bowen, 803 F.2d 575, 580 (10th Cir. 1986).

IT IS SO ORDERED