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

1 PHILLIP A. TALBERT Acting United States Attorney 2 DEBORAH LEE STACHEL Regional Chief Counsel 3 DANIEL P. TALBERT Special Assistant United States Attorney 4 Social Security Administration 160 Spear Street, Suite 800 5 San Francisco, CA 94105 Telephone: (510) 970-4805 6 Facsimile: (415) 744-0134 Attorneys for Defendant 7 8 9 UNITED STATES DISTRICT COURT 10 EASTERN DISTRICT OF CALIFORNIA 11 FRESNO DIVISION 12 13 CAROL RETHWISCH, No. 1:19-CV-01039-BAM 14 Plaintiff, 15 STIPULATION AND ORDER v. FOR THE AWARD OF FEES UNDER THE 16 EQUAL ACCESS TO JUSTICE ACT KILOLO KIJAKAZI,1 17 Acting Commissioner of Social Security, 18 Defendant. 19 IT IS HEREBY STIPULATED by and between the parties through their undersigned 20 counsel, subject to the approval of the Court, that the previously-filed Motion for Attorney’s Fees, 21 filed June 15, 2021, shall be withdrawn, and that Plaintiff be awarded attorney fees and expenses 22 under the EAJA in the amount of FIVE THOUSAND NINE HUNDRED TWENTY EIGHT 23 DOLLARS AND FORTY-FIVE CENTS ($5,928.45). This amount represents compensation for 24 all legal services rendered on behalf of Plaintiff, to date, by counsel in connection with this civil 25 1 Kilolo Kijakazi became the Acting Commissioner of Social Security on July 9, 2021. Pursuant 26 to Rule 25(d) of the Federal Rules of Civil Procedure, Kilolo Kijakazi should be substituted, 27 therefore, for Andrew Saul as the defendant in this suit. No further action need be taken to continue this suit by reason of the last sentence of section 205(g) of the Social Security Act, 42 28 U.S.C. § 405(g). 1 action, in accordance with 28 U.S.C. § 2412. 2 This stipulation constitutes a compromise settlement of Plaintiff’s request for EAJA 3 attorney fees and expenses, and does not constitute an admission of liability on the part of 4 Defendant under the EAJA. Payment of the agreed amount shall constitute a complete release 5 from, and bar to, any and all claims that Plaintiff and/or Plaintiff's counsel may have relating to 6 EAJA attorney fees and expenses in connection with this action. 7 After the Court issues an order for EAJA fees to Plaintiff, the government will consider 8 the matter of Plaintiff's assignment of EAJA fees to Plaintiff's attorney. Pursuant to Astrue v. 9 Ratliff, 130 S.Ct. 2521, 2252-53 (2010), the ability to honor the assignment will depend on 10 whether the fees are subject to any offset allowed under the United States Department of the 11 Treasury’s Offset Program. After the order for EAJA fees is entered, the government will 12 determine whether they are subject to any offset. 13 Fees shall be made payable to Plaintiff, but if the Department of the Treasury determines 14 that Plaintiff does not owe a federal debt, then the government shall cause the payment of fees to 15 be made directly to Plaintiff’s counsel, Kelsey Mackenzie Brown, pursuant to the assignment 16 executed by Plaintiff. Any payments made shall be delivered to Plaintiff’s counsel. 17 This award is without prejudice to the rights of Plaintiff’s counsel to seek Social Security 18 Act attorney fees under 42 U.S.C. § 406, subject to the offset provisions of the EAJA. 19 Respectfully submitted July 22, 2021. 20 DATED: July 21, 2021 /s/ Kelsey Mackenzie Brown 21 KELSEY MCKENZIE BROWN (as authorized by email) 22 Attorney for Plaintiff 23 PHILLIP A. TALBERT 24 Acting United States Attorney 25 DATED: July 21, 2021 By /s/ Daniel P. Talbert DANIEL P. TALBERT 26 Special Assistant United States Attorney 27 Attorneys for Defendant 28 1 ORDER 2 PURSUANT TO STIPULATION, IT IS ORDERED that Plaintiff’s motion for 3 attorney’s fees (Doc. 26), filed June 15, 2021, is WITHDRAWN. IT IS FURTHER ORDERED 4 that Plaintiff shall be awarded attorney fees in the amount of FIVE THOUSAND NINE 5 HUNDRED TWENTY EIGHT DOLLARS AND FORTY-FIVE CENTS ($5,928.45) as 6 authorized by 28 U.S.C. § 2412(d), subject to the terms of the above-referenced Stipulation. 7 IT IS SO ORDERED. 8 9 Dated: July 26, 2021 /s/ Barbara A. McAuliffe _ 10 UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28