(SS) Hornbeak v. Commissioner of Social Security ( 2019 )

1 JOSEPHINE M. GERRARD (CBN 303221) 2 Gerrard Law Offices 1791 Solano Avenue, Suite F01 3 Berkeley, California 94707 4 Tel: (510) 838-0529 Fax: (510) 280-1635 5 jo@gerrardlawoffices.com 6 for Plaintiff Andrea Hornbeak 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 ANDREA HORNBEAK, No. 2:18-cv-00142-DB (SS) 11 Plaintiff, 12 STIPULATION AND ORDER FOR AWARD OF 13 v. ATTORNEY'S FEES PURSUANT TO THE 14 ANDREW SAUL, EQUAL ACCESS TO JUSTICE ACT. (28 U.S.C. § 2412(d)) 15 Commissioner of Social Security, 16 Defendant 17 18 19 IT IS HEREBY STIPULATED by and between the parties through their undersigned 20 counsel, subject to the approval of the Court, that Plaintiff be awarded attorney fees in 21 the amount of six thousand five hundred dollars ($6,500.00) under the Equal Access to 22 Justice Act EAJA), 28 U.S.C. § 2412(d), and no costs under 28 U.S.C. § 1920. This amount 23 represents compensation for all legal services rendered on behalf of Plaintiff by counsel 24 in connection with this civil action, in accordance with 28 U.S.C. §§ 1920; 2412(d). 25 After the Court issues an order for EAJA fees to Plaintiff, the government will 26 consider the matter of Plaintiff’s assignment of EAJA fees to Josephine M. Gerrard. 27 Pursuant to Astrue v. Ratliff, 560 U.S. 586, 598, 130 S.Ct. 2521, 177 L.Ed.2d 91 (2010), the 28 ability to honor the assignment will depend on whether the fees are subject to any offset 1 allowed under the United States Department of the Treasury’s Offset Program. After the 2 3 order for EAJA fees is entered, the government will determine whether they are subject 4 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 Josephine M. Gerrard, 8 pursuant to the assignment executed by Plaintiff. Any payments made shall be delivered 9 to Josephine M. Gerrard. 10 This stipulation constitutes a compromise settlement of Plaintiff’s request for EAJA 11 attorney fees and does not constitute an admission of liability on the part of Defendant 12 under the EAJA or otherwise. Payment of the agreed amount shall constitute a complete 13 release from, and bar to, any and all claims that Plaintiff and/or Josephine M. Gerrard, 14 including her firm, Gerrard Law Offices, may have relating to EAJA attorney fees in 15 connection with this action. 16 This award is without prejudice to the rights of Josephine M. Gerrard or Gerrard 17 Law Offices to seek Social Security Act attorney fees under 42 U.S.C. § 406(b), subject to 18 the savings clause provisions of the EAJA. 19 IT IS HEREBY STIPULATED by and between the parties, through their undersigned 20 attorneys, and with the approval of the Court, that the Commissioner of Social Security 21 has agreed to stipulate to attorney’s fees at $6,500. 22 Plaintiff requests that the Court find that she meets the statutory requirements for 23 an award of attorney fees under the EAJA and that the Commissioner’s position was not 24 substantially justified, and award $6,500 in attorney fees under 28 U.S.C. § 2412(d). 25 26 The proposed order is stipulated and respectfully submitted by the following; 27 28 By email 1 2 /s Tina Naicker 3 TINA NAICKER Office of General Counsel Social Security Administration 4 LEAD ATTORNEY 5 6 Edward Alan Olsen, SS US Attorney's Office 7 ATTORNEY TO BE NOTICED 8 /s Josephine M. Gerrard 9 JOSEPHINE M. GERRARD 10 Attorney for Plaintiff 11 12 ORDER 13 Pursuant to the parties’ stipulation, IT IS SO ORDERED. 14 DATED: October 23, 2019 /s/ DEBORAH BARNES 15 UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28