(SS) Luethke v. Commissioner of Social Security ( 2023 )

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, Andrew Scott Luethke 7 8 9 UNITED STATES DISTRICT COURT 10 FOR THE EASTERN DISTRICT OF CALIFORNIA FRESNO DIVISION 11 12 Andrew Scott Luethke, Case No. 1:22-cv-01043-SKO 13 Plaintiff, ORDER ON STIPULATION AND 14 UNOPPOSED MOTION FOR THE v. AWARD AND PAYMENT OF 15 ATTORNEY FEES AND EXPENSES 16 Kilolo Kijakazi, Acting PURSUANT TO THE EQUAL ACCESS Commissioner of Social Security, TO JUSTICE ACT 17 18 Defendant. (Doc. 23) 19 20 IT IS HEREBY STIPULATED by and between the parties through their 21 undersigned counsel, subject to the approval of the Court, that Plaintiff be awarded 22 attorney fees and expenses in the amount of FIVE THOUSAND THREE-HUNDRED 23 DOLLARS and 00/100 ($5,300.00) under the Equal Access to Justice Act (EAJA), 28 24 U.S.C. § 2412(d), and costs in the amount of zero dollars ($0.00) under 28 U.S.C. 25 §1920. This amount represents compensation for all legal services rendered on behalf of 26 Plaintiff by counsel in connection with this civil action, in accordance with 28 U.S.C. 27 §§ 1920, 2412(d). 1 After the Court issues an order for EAJA fees to Plaintiff, the government will 2 consider the matter of Plaintiff’s assignment of EAJA fees to counsel. Pursuant to 3 Astrue v. Ratliff, 560 U.S. 586, 598, 130 S.Ct. 2521, 177 L.Ed.2d 91 (2010), the ability 4 to honor the assignment will depend on whether the fees are subject to any offset 5 allowed under the United States Department of the Treasury’s Offset Program. After 6 the order for EAJA fees is entered, the government will determine whether they are 7 subject to any offset. 8 Fees shall be made payable to Plaintiff, but if the Department of the Treasury 9 determines that Plaintiff does not owe a federal debt, then the government shall cause 10 the payment of fees, expenses and costs to be made directly to Counsel, pursuant to 11 the assignment executed by Plaintiff. Any payments made shall be delivered and 12 made payable to Plaintiff’s counsel, Jonathan O. Peña. 13 This stipulation constitutes a compromise settlement of Plaintiff’s request for 14 EAJA attorney fees, and does not constitute an admission of liability on the part of 15 Defendant under the EAJA or otherwise. Payment of the agreed amount shall 16 constitute a complete release from, and bar to, any and all claims that Plaintiff and/or 17 Counsel including Counsel’s firm may have relating to EAJA attorney fees in 18 connection with this action. 19 This award is without prejudice to the rights of Counsel and/or Counsel’s firm 20 to seek Social Security Act attorney fees under 42 U.S.C. § 406(b), subject to the 21 savings clause provisions of the EAJA. 22 23 24 25 26 27 1 Respectfully submitted, 2 3 Dated: October 4, 2023 /s/ Jonathan O. Peña 4 J ONATHAN O. PEÑA Attorney for Plaintiff 5 6 Dated: October 4, 2023 PHILLIP A. TALBERT 7 United States Attorney MATHEW W. PILE 8 Associate General Counsel 9 Office of Program Litigation Social Security Administration 10 11 By: _*_Mary Tsai Mary Tsai 12 Special Assistant U.S. Attorney 13 Attorneys for Defendant (*Permission to use electronic signature 14 obtained via email on Oct. 4, 2023). 15 16 17 18 19 20 21 22 23 24 25 26 27 1 ORDER 2 Based upon the parties’ foregoing Stipulation and Unopposed Motion for the 3 4 Award and Payment of Equal Access to Justice Act Fees and Expenses (the 5 “Stipulation”) (Doc. 23), IT IS ORDERED that fees and expenses in the amount of 6 FIVE THOUSAND THREE-HUNDRED DOLLARS and 00/100 ($5,300.00) as 7 8 authorized by the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d), and no 9 costs be awarded subject to the terms of the Stipulation. 10 11 IT IS SO ORDERED. 12 Dated: October 5, 2023 /s/ Sheila K. Oberto . 13 UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27