Livits v. Commissioner, Social Security Administration

1
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 23-cv-03418-CYC
Z.L.,1
Plaintiff,
v.
COMMISSIONER, SOCIAL SECURITY ADMINISTRATION,
Defendant.
______________________________________________________________________________
ORDER
______________________________________________________________________________
Cyrus Y. Chung, United States Magistrate Judge.
This matter is before the Court on the plaintiff’s Unopposed Motion for Attorney Fees
Pursuant to the Equal Access to Justice Act, ECF No. 16, in which the plaintiff seeks $5,968.36
in attorney’s fees pursuant to the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412.
Because the plaintiff’s request is supported by the law and is unopposed by the defendant, the
Court grants the motion.
The EAJA provides for an award of attorney’s fees to a prevailing party against the
United States unless the Court finds that the position of the United States was substantially
justified or special circumstances would make an award unjust. 28 U.S.C. § 2412(d)(1)(A). The
test for substantial justification “is one of reasonableness in law and fact.” Hackett v. Barnhart,
475 F.3d 1166, 1172 (10th Cir. 2007) (quotation marks omitted). “The government’s ‘position
can be justified even if it is not correct.’” Hackett, 475 F.3d at 1172 (quoting Pierce v.
1 Pursuant to D.C.COLO.LAPR 5.2(b), this order identifies the plaintiff by initials only.
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Underwood, 487 U.S. 552, 566 n.2 (1988)). The burden is on the Commissioner to show his
position was substantially justified. Hackett, 475 F.3d at 1172.
In this case, the defendant does not argue that his position was substantially justified or
that there are any special circumstances that would make the award unjust. Further, he does not
dispute that the plaintiff is the prevailing party, the reasonableness of the time spent by counsel,
or the applicable rate. Upon review of the docket, the motion, and the Statement of Professional
Services supplied by the plaintiff, the Court finds there is a sufficient basis to grant the motion.
Accordingly, it is ORDERED:
(1) The plaintiff’s Unopposed Motion for Attorney Fees Pursuant to the Equal Access to
Justice Act, ECF No. 16, is GRANTED in the amount of $5,968.36; and
(2) If, after receiving this Order, the Commissioner (1) determines that the plaintiff does
not owe a debt that is subject to offset under the Treasury Offset Program, and (2) agrees
to waive the requirements of the Anti-Assignment Act, the fees will be made payable to
the plaintiff’s attorney. However, if the plaintiff owes a debt that is subject to offset under
the Treasury Offset Program, the Commissioner cannot agree to waive the requirements
of the Anti-Assignment Act, and the remaining EAJA fees after offset will be paid by a
check made out to the plaintiff but delivered to the plaintiff’s attorney.
SO ORDERED this 25th day of March, 2025, at Denver, Colorado.
BY THE COURT:
____________________________________
Cyrus Y. Chung
United States Magistrate Judge
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