(SS) Emery v. Commissioner of Social Security ( 2021 )

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, Shailey Michele Emery 7 8 9 UNITED STATES DISTRICT COURT 10 FOR THE EASTERN DISTRICT OF CALIFORNIA FRESNO DIVISION 11 12 Shailey Michele Emery, Case No. 1:20-cv-00461-SKO 13 Plaintiff, STIPULATION FOR THE AWARD 14 AND PAYMENT OF ATTORNEY v. FEES AND EXPENSES PURSUANT 15 TO THE EQUAL ACCESS TO 16 Kilolo Kijakazi, Acting JUSTICE ACT; ORDER Commissioner of Social Security, 17 (Doc. 22) 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 SIX THOUSAND FOUR-HUNDRED 22 FORTY DOLLARS and 00/100 ($6,440.00) under the Equal Access to Justice Act 23 (EAJA), 28 U.S.C. § 2412(d). This amount represents compensation for all legal 24 services rendered on behalf of Plaintiff by counsel in connection with this civil action, 25 in 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 1 Astrue v. Ratliff, 560 U.S. 586, 598, 130 S.Ct. 2521, 177 L.Ed.2d 91 (2010), the ability 2 to honor the assignment will depend on whether the fees are subject to any offset 3 allowed under the United States Department of the Treasury’s Offset Program. After 4 the order for EAJA fees is entered, the government will determine whether they are 5 subject to any offset. 6 Fees shall be made payable to Plaintiff, but if the Department of the Treasury 7 determines that Plaintiff does not owe a federal debt, then the government shall cause 8 the payment of fees, expenses and costs to be made directly to Counsel, pursuant to 9 the assignment executed by Plaintiff. Any payments made shall be delivered to 10 Plaintiff’s counsel, Jonathan O. Peña. 11 This stipulation constitutes a compromise settlement of Plaintiff’s request for 12 EAJA attorney fees, and does not constitute an admission of liability on the part of 13 Defendant under the EAJA or otherwise. Payment of the agreed amount shall 14 constitute a complete release from, and bar to, any and all claims that Plaintiff and/or 15 Counsel including Counsel’s firm may have relating to EAJA attorney fees in 16 connection with this action. 17 This award is without prejudice to the rights of Counsel and/or Counsel’s firm 18 to seek Social Security Act attorney fees under 42 U.S.C. § 406(b), subject to the 19 savings clause provisions of the EAJA. 20 Respectfully submitted, 21 22 Dated: November 15, 2021 /s/ Jonathan O. Peña 23 J ONATHAN O. PEÑA Attorney for Plaintiff 24 25 Dated: November 16, 2021 PHILLIP A. TALBERT 26 Acting United States Attorney DEBORAH LEE STACHEL 27 Regional Chief Counsel, Region IX 1 Social Security Administration 2 By: _*_Marcelo N. Illarmo Marcelo N. Illarmo 3 Special Assistant U.S. Attorney 4 Attorneys for Defendant (*Permission to use electronic signature 5 obtained via email on November 16, 2021). 6 7 ORDER 8 9 Based upon the foregoing Stipulation for the Award and Payment of Equal 10 Access to Justice Act Fees and Expenses of the parties (the “Stipulation”) (Doc. 22), 11 IT IS ORDERED that fees and expenses in the amount of SIX THOUSAND 12 13 FOUR-HUNDRED FORTY DOLLARS and 00/100 ($6,440.00) as authorized by the 14 Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d), be awarded subject to the 15 terms of the Stipulation. 16 17 IT IS SO ORDERED. 18 19 Dated: November 24, 2021 /s/ Sheila K. Oberto . UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27