Mendiola v. Kijakazi

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
GEORGE M.,1
Plaintiff,
v.
KILOLO KIJAKAZI,
Acting Commissioner of Soc. Sec. Admin,
Defendant.
Case No. 3:21-cv-00203-TMB
ORDER
George M. (“Plaintiff”), by and through his attorneys, Dellert Baird Law
Offices, 	PLLC, 	and 	Defendant, 	Kilolo 	Kijakazi 	(the 	“Commissioner”) 	have
stipulated to an award of $7,174.49 in attorney fees pursuant to the Equal Access
to Justice Act (“EAJA”) and $402.00 in costs pursuant to 31 U.S.C. § 1304 and 28
U.S.C. § 1920.2 Accordingly, and for the reasons that follow, the parties’ Stipulated
Motion for Attorney Fees Pursuant to 28 U.S.C. § 2412(d) is GRANTED.
I. 	BACKGROUND
Plaintiff initiated this action on September 9, 2021, after exhausting his
administrative remedies.3 On July 15, 2022, this Court ordered remand for further
1 Plaintiff’s name is partially redacted in compliance with Fed. R. Civ. P. 5.2(c)(2)(B) and the
recommendation of the Committee on Court Administration and Case Management of the Judicial
Conference of the United States. 	See Memorandum, Committee on Court Administration and
Case 	Management 	of 	the 	Judicial 	Conference 	of 	the 	United 	States 	(May 	1, 	2018),
https://www.uscourts.gov/sites/default/files/18-cv-l-suggestion_cacm_0.pdf.
2 Docket 18 (Stipulated Motion).
3 Docket 1 (Compl.).
Case 3:21-cv-00203-TMB Document 19 Filed 09/28/22 Page 1 of 4

Case No. 3:21-cv-00203-TMB
Order EAJA Atty Fees
Page 2 of 4
administrative proceedings.4 	Plaintiff filed the pending Stipulated Motion for
Attorney Fees Pursuant to 28 U.S.C. § 2412(d) on September 23, 2022.5
II. 	DISCUSSION
In any civil action brought by or against the United States, the EAJA provides
that “a court shall award to a prevailing party other than the United States fees and
other expenses . . . unless the court finds that the position of the United States was
substantially justified or that special circumstances make an award unjust.”6 	In
Social Security disability cases, “[a] plaintiff who obtains a sentence four remand
is considered a prevailing party for purposes of attorneys’ fees.” Such a plaintiff is
a 	prevailing 	party 	“even 	when 	the 	case 	has 	been 	remanded 	for 	further
administrative action.”7 	The fee applicant has the burden of establishing his
entitlement to an award and documenting the appropriate hours expended,8 and
the United States has the burden of proving its position was “substantially justified”
or that “special circumstances make an award unjust.”9 	A court applies the
“lodestar” method to determine what constitutes a reasonable attorney’s fee for
4 Docket 16 (Decision and Order), Docket 17 (Judgment on July 25, 2022).
5 Docket 18.
6 28 U.S.C. § 2412(d)(1)(A).
7 Akopyan v. Barnhart, 296 F.3d 852, 854 (9th Cir. 2002) (internal citations omitted).
8 Hensley v. Eckerhart, 461 U.S. 424, 437 (1983) (superseded on other grounds by the Prison
Litigation Reform Act)); see also 28 U.S.C. § 2412(d)(1)(B) (setting out prescriptions on what an
applicant must show to receive award).
9 28 U.S.C. § 2412(d)(1).
Case 3:21-cv-00203-TMB Document 19 Filed 09/28/22 Page 2 of 4

Case No. 3:21-cv-00203-TMB
Order EAJA Atty Fees
Page 3 of 4
civil rights cases.10 	“To calculate the lodestar amount, a court multiplies the
number of hours reasonably expended on the litigation by a reasonable hourly
rate.”11
Here, the Commissioner agrees that Plaintiff is entitled to an award of
attorney fees under the EAJA and does not dispute Plaintiff’s hourly rate or the
requested amount for attorney fees in this case. The Commissioner also does not
dispute Plaintiff’s request for $402 reimbursement for filing fees.12
III. 	CONCLUSION
The Court finds that Plaintiff is entitled to an award under the EAJA.
Therefore, the Court GRANTS Plaintiff’s Stipulated Motion for Attorney Fees
Pursuant to 28 U.S.C. § 2412(d) at Docket 18. 	Plaintiff is awarded EAJA fees in
the amount of $7,174.49 in attorney’s fees and $402.00 in costs.
Pursuant 	to 	the 	EAJA 	and 	consistent 	with 	Astrue 	v. 	Radliff,13 	the
Commissioner shall contact the Department of Treasury to determine if this award
is subject to any offset. 	If the Department of Treasury verifies that Plaintiff does
not owe a debt, the Commissioner shall honor Plaintiff’s assignment of his EAJA
award and pay the above amount directly to Plaintiff’s counsel. If there is an offset,
10 Hensley, 461 U.S. at 433.
11 Costa v. Comm’r of Soc. Sec. Admin., 690 F.3d 1132, 1135 (internal citations and quotations
omitted).
12 Docket 18.
13 560 U.S. 586 (2000).
Case 3:21-cv-00203-TMB Document 19 Filed 09/28/22 Page 3 of 4

Case No. 3:21-cv-00203-TMB
Order EAJA Atty Fees
Page 4 of 4
any remainder shall be made payable to Plaintiff, based on the Department of the
Treasury’s Offset Program and standard practices. 	Plaintiff’s attorney will refund
to Plaintiff any money paid toward these costs.
Whether the check is made payable to Plaintiff or to his attorney, the check
shall be mailed to his counsel at: Dellert Baird Law Offices, PLLC, P.O. Box 429,
Spanaway, WA 98387.
IT IS SO ORDERED.
DATED this 28th day of September, 2022.
/s/ Timothy M. Burgess
TIMOTHY M. BURGESS
UNITED STATES DISTRICT JUDGE
Case 3:21-cv-00203-TMB Document 19 Filed 09/28/22 Page 4 of 4