(SS) Mayorga v. Commissioner of Social Security ( 2022 )

1 2 UNITED STATES DISTRICT COURT 3 FOR THE EASTERN DISTRICT OF CALIFORNIA FRESNO DIVISION 4 5 Nicolas Mayorga, Case No. 1:21-cv-00158-BKA-GSA 6 Plaintiff, STIPULATION FOR THE AWARD 7 AND PAYMENT OF ATTORNEY v. FEES AND EXPENSES PURSUANT 8 TO THE EQUAL ACCESS TO 9 Kilolo Kijakazi, Acting JUSTICE ACT; ORDER 10 Commissioner of Social Security, 11 Defendant. 12 IT IS HEREBY STIPULATED by and between the parties through their 13 undersigned counsel, subject to the approval of the Court, that Plaintiff be awarded 14 attorney fees and expenses in the amount of EIGHT THOUSAND FIVE HUNDRED 15 DOLLARS and 00/100 ($8,500.00) under the Equal Access to Justice Act (EAJA), 28 16 U.S.C. § 2412(d), and cost in the amount of zero dollars ($0.00) under 28 U.S.C. §1920. 17 This amount represents compensation for all legal services rendered on behalf of 18 Plaintiff by counsel in connection with this civil action, in accordance with 28 U.S.C. § 19 2412(d). 20 After the Court issues an order for EAJA fees to Plaintiff, the government will 21 consider the matter of Plaintiff’s assignment of EAJA fees to counsel. Pursuant to 22 Astrue v. Ratliff, 560 U.S. 586, 598, 130 S.Ct. 2521, 177 L.Ed.2d 91 (2010), the ability 23 to honor the assignment will depend on whether the fees are subject to any offset 24 allowed under the United States Department of the Treasury’s Offset Program. After 25 26 the order for EAJA fees is entered, the government will determine whether they are 27 subject to any offset. 1 Fees shall be made payable to Plaintiff, but if the Department of the Treasury 2 determines that Plaintiff does not owe a federal debt, then the government shall cause 3 the payment of fees, expenses and costs to be made directly to Counsel, pursuant to 4 the assignment executed by Plaintiff. Any payments made shall be delivered to 5 Plaintiff’s counsel, Jonathan O. Peña. 6 This stipulation constitutes a compromise settlement of Plaintiff’s request for 7 EAJA attorney fees, and does not constitute an admission of liability on the part of 8 Defendant under the EAJA or otherwise. Payment of the agreed amount shall 9 constitute a complete release from, and bar to, any and all claims that Plaintiff and/or 10 Counsel including Counsel’s firm may have relating to EAJA attorney fees in 11 connection with this action. 12 This award is without prejudice to the rights of Counsel and/or Counsel’s firm 13 to seek Social Security Act attorney fees under 42 U.S.C. § 406(b), subject to the 14 savings clause provisions of the EAJA. 15 Respectfully submitted, 16 17 Dated: February 2, 2022 /s/ Jonathan O. Peña 18 J ONATHAN O. PEÑA Attorney for Plaintiff 19 20 Dated: February 2, 2022 PHILLIP A. TALBERT 21 United States Attorney PETER K. THOMPSON 22 Acting Regional Chief Counsel, Region IX 23 Social Security Administration 24 By: _*_Marcelo N. Illarmo 25 Marcelo N. Illarmo Special Assistant U.S. Attorney 26 Attorneys for Defendant 27 (*Permission to use electronic signature obtained via email on February 2, 2022). 1 2 3 4 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 4 to Justice Act Fees and Expenses (the “Stipulation”), 5 IT IS ORDERED that fees and expenses in the amount of EIGHT THOUSAND 6 FIVE HUNDRED DOLLARS and 00/100 ($8,500.00) as authorized by the Equal 7 8 Access to Justice Act (EAJA), 28 U.S.C. § 2412(d), be awarded subject to the terms of 9 the Stipulation. 10 11 12 IT IS SO ORDERED. 13 Dated: February 3, 2022 /s/ Gary S. Austin 14 UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27