Elizondo v. Social Security Administration

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO RICHARD ARMIJO ELIZONDO, Plaintiff, vs. CIV. NO. 1:22-cv-00710-KRS

KILOLO KIJAKAZI, Acting Commissioner of Social Security, Defendant.

ORDER GRANTING STIPULATED MOTION FOR AWARD OF ATTORNEY FEES UNDER THE EQUAL ACCESS TO JUSTICE ACT THIS MATTER comes before the Court upon the parties’ Stipulated Motion for Award of Attorney Fees Under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412 (Doc. 36), filed November 30, 2023. The Court, being fully advised in the premises, FINDS that the motion is well-taken and should be GRANTED.

IT IS, THEREFORE, ORDERED that the motion is GRANTED, and Plaintiff is awarded $5,700.00 in attorney fees pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412(d). See Astrue v. Ratliff, 560 U.S. 586 (2010) (EAJA fees are paid to the prevailing party, not the attorney).

Payment 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. The parties further agree that the EAJA award is without prejudice to Plaintiff’s attorney’s right to seek attorney fees pursuant to 42 U.S.C. § 406(b), subject to the offset provisions of the EAJA. See 28 U.S.C. § 2412(c)(1) (2006).

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, Plaintiffs 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.

KEVIN R. SWEAZEA UNITED STATES MAGISTRATE JUDGE SUBMITTED AND APPROVED BY: Electronically submitted 11/30/23 VICTORIA V. JOHNSON Special Assistant United States Attorney Electronically approved 11/30/23 AMBER L. DENGLER Attorney for Plaintiff