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

1 Melissa Newel (CA 148563) NEWEL LAW 2 2625 Alcatraz Ave., Suite 132 Berkeley, CA 94705 3 (510) 316-3827 4 mnewel@newellawfirm.com Attorney for Plaintiff 5 MARK ANTHONY DAVALOS 6 PHILLIP A. TALBERT 7 United States Attorney MATHEW W. PILE 8 Associate General Counsel Office of Program Litigation, Office 7 9 Social Security Administration MARY TSAI (CA 216963) 10 Special Assistant United States Attorney 11 160 Spear Street, Suite 800 San Francisco, CA 94105 12 (510) 970-4864 mary.tsai@ssa.gov 13 Attorneys for Defendant 14 UNITED STATES DISTRICT COURT 15 EASTERN DISTRICT OF CALIFORNIA 16 17 MARK ANTHONY DAVALOS, No. 1:22-CV-01093 (GSA) 18 Plaintiff, 19 v. STIPULATION AND ORDER FOR 20 AWARD AND PAYMENT OF KILOLO KIJAKAZI, ATTORNEYS FEES AND COSTS 21 ACTING COMMISSIONER OF PURSUANT TO THE EQUAL ACCESS TO SOCIAL SECURITY, JUSTICE ACT (28 U.S.C. §§1920, 2412(d)) 22 Defendant. 23 24 25 26 27 28 1 IT IS HEREBY STIPULATED by and between the parties, through their undersigned 2 attorneys, subject to the approval of the Court, that Mark Anthony Davalos (“Plaintiff”) be 3 awarded attorney fees under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. §2412 (d), in 4 the amount of six hundred and forty-six dollars and eleven cents ($646.11) and four hundred and 5 two dollars and no cents ($402.00) in costs under 28 U.S.C. §1920. The amounts represent 6 compensation for all legal services rendered on behalf of Plaintiff by Plaintiff’s counsel in 7 connection with this civil action, in accordance with 28 U.S.C. §2412 (d), and for associated costs 8 under 28 U.S.C. §1920. 9 After the Court issues an Order for EAJA fees to Plaintiff, the government will consider 10 the matter of Plaintiff’s assignment of EAJA fees to Plaintiff’s counsel. Pursuant to Astrue v. 11 Ratliff, 560 U.S. 586, 598 (2010), the ability to honor the assignment will depend on whether the 12 attorney fees are subject to any offset allowed under the United States Department of the 13 Treasury’s Offset Program. After the Order for EAJA fees is entered, the government will 14 determine whether they are subject to any offset. 15 Fees shall be made payable to Plaintiff, but if the Department of the Treasury determines 16 that Plaintiff does not owe a federal debt subject to offset, then the government shall cause the 17 payment of fees approved to be made payable to Melissa Newel or Newel Law (collectively 18 “Plaintiff’s counsel”), pursuant to the assignment executed by Plaintiff. Any and all payments 19 made shall be delivered to Plaintiff’s counsel. 20 This stipulation constitutes a compromise settlement of Plaintiff’s request for EAJA 21 attorney fees and costs and does not constitute an admission of liability on the part of Defendant 22 under EAJA or otherwise. Payment of the agreed amounts shall constitute a complete release 23 from, and bar to, any and all claims that Plaintiff and/or Plaintiff’s counsel may have relating to 24 EAJA attorney fees and costs in connection with this action. 25 /// 26 /// 27 /// 28 /// 1 This award is without prejudice to the rights of Plaintiff’s counsel to seek Social Security 2 Act attorney fees under 42 U.S.C. §406(b), subject to the savings clause provisions of the EAJA. 3 Respectfully submitted, 4 Dated: February 24, 2023 NEWEL LAW 5 6 By: Melissa Newel 7 Melissa Newel Attorney for Plaintiff 8 MARK ANTHONY DAVALOS 9 10 Dated: February 24, 2023 PHILLIP A. TALBERT United States Attorney 11 MATHEW W. PILE Associate General Counsel 12 Social Security Administration 13 By: Mary Tsai* 14 MARY TSAI (*Authorized by email dated 02/23/2023) 15 Special Assistant U.S. Attorney Attorneys for Defendant 16 17 18 ORDER 19 It is ORDERED that, pursuant to the Equal Access to Justice Act, 28 U.S.C. §2412(d), 20 attorney fees in the amount of four hundred and forty-six dollars and eleven cents ($646.11) 21 and four hundred and two dollars and no cents ($402.00) in costs to be awarded subject to the 22 terms of the Stipulation. 23 24 IT IS SO ORDERED. 25 26 Dated: February 27, 2023 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 27 28