(SS) Diaz v. Commissioner of Social Security ( 2020 )

1 Jonathan O. Peña, Esq. 2 CA Bar ID No.: 278044 Peña & Bromberg, PLC 3 2440 Tulare St., Ste. 320 4 Fresno, CA 93721 Telephone: 559-439-9700 5 Facsimile: 559-439-9723 6 Email: info@jonathanpena.com Attorney for Plaintiff, Andy Villa Diaz 7 8 9 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA 10 FRESNO DIVISION 11 12 ANDY VILLA DIAZ, Case No. 1:19-cv-01661-GSA 13 Plaintiff, STIPULATION FOR THE AWARD 14 AND PAYMENT OF ATTORNEY v. FEES AND EXPENSES PURSUANT 15 TO THE EQUAL ACCESS TO 16 ANDREW SAUL, Commissioner of JUSTICE ACT; ORDER Social Security, 17 (Doc. 26) 18 Defendant. 19 IT IS HEREBY STIPULATED by and between the parties through their 20 undersigned counsel, subject to the approval of the Court, that Plaintiff be awarded 21 attorney fees and expenses in the amount of FIVE THOUSAND EIGHT HUNDRED 22 SIXTY-ONE DOLLARS AND 76/100, $5,861.76, under the Equal Access to Justice Act 23 (EAJA), 28 U.S.C. § 2412(d). This amount represents compensation for all legal services 24 rendered on behalf of Plaintiff by counsel in connection with this civil action, in 25 accordance with 28 U.S.C. § 2412(d). 26 After the Court issues an order for EAJA fees to Plaintiff, the government will 27 consider the matter of Plaintiff’s assignment of EAJA fees to counsel. Pursuant to Astrue 1 v. Ratliff, 560 U.S. 586, 598, 130 S.Ct. 2521, 177 L.Ed.2d 91 (2010), the ability to honor 2 the assignment will depend on whether the fees are subject to any offset allowed under 3 the United States Department of the Treasury’s Offset Program. After the order for EAJA 4 fees is entered, the government will determine whether they are subject to any offset. 5 Fees shall be made payable to Plaintiff, but if the Department of the Treasury 6 determines that Plaintiff does not owe a federal debt, then the government shall cause 7 the payment of fees, expenses and costs to be made directly to Counsel, pursuant to the 8 assignment executed by Plaintiff. Any payments made shall be delivered to Plaintiff’s 9 counsel, Jonathan O. Peña. 10 This stipulation constitutes a compromise settlement of Plaintiff’s request for 11 EAJA attorney fees, and does not constitute an admission of liability on the part of 12 Defendant under the EAJA or otherwise. Payment of the agreed amount shall constitute 13 a complete release from, and bar to, any and all claims that Plaintiff and/or Counsel 14 including Counsel’s firm may have relating to EAJA attorney fees in connection with 15 this action. 16 This award is without prejudice to the rights of Counsel and/or Counsel’s firm to 17 seek Social Security Act attorney fees under 42 U.S.C. § 406(b), subject to the savings 18 clause provisions of the EAJA. 19 Respectfully submitted, 20 21 Dated: October 23, 2020 /s/ Jonathan O. Peña 22 J ONATHAN O. PEÑA Attorney for Plaintiff 23 24 Dated: November 17, 2020 McGREGOR W. SCOTT 25 United States Attorney DEBORAH LEE STACHEL 26 Regional Chief Counsel, Region IX 27 Social Security Administration 1 By: _*_Ellinor R. Coder Ellinor R. Coder 2 Special Assistant U.S. Attorney Attorneys for Defendant 3 (*Permission to use electronic signature 4 obtained via email on November 17, 2020). 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 1 ORDER 2 Based upon the parties’ Stipulation for the Award and Payment of Equal Access 3 to Justice Act Fees and Expenses, IT IS ORDERED that fees and expenses in the 4 amount of $5,861.76 as authorized by 28 U.S.C. § 2412 be awarded subject to the terms 5 6 of the Stipulation. 7 8 9 IT IS SO ORDERED. 10 Dated: November 17, 2020 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27