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

PHILLIP A. TALBERT 1 United States Attorney 2 MATHEW W. PILE Associate General Counsel 3 Office of Program Litigation, Office 7 JAMES KI, WSBN 42978 4 Special Assistant United States Attorney 5 Office of Program Litigation, Office 7 Office of the General Counsel 6 Social Security Administration 6401 Security Boulevard 7 Baltimore, MD 21235 8 Telephone: (212) 264-2435 james.ki@ssa.gov 9 10 Attorneys for Defendant UNITED STATES DISTRICT COURT 11 EASTERN DISTRICT OF CALIFORNIA 12 13 ) Case No.: 1:23-cv-01120-SKO 14 EDITH ELIZABETH BIRDWELL, ) ) STIPULATION AND UNOPPOSED 15 Plaintiff, ) MOTION FOR THE AWARD AND ) PAYMENT OF ATTORNEY FEES 16 vs. ) PURSUANT TO THE EQUAL ACCESS TO ) JUSTICE ACT, 28 U.S.C. § 2412(d); ORDER 17 KILOLO KIJAKAZI, ) Acting Commissioner of Social Security, ) (Doc. 17) 18 ) ) 19 Defendant. ) 20 21 IT IS HEREBY STIPULATED by and between the parties through their undersigned 22 counsel, subject to the approval of the Court, that Plaintiff be awarded attorney fees in the 23 amount $7,600.00 (SEVEN THOUSAND SIX HUNDRED dollars) under the Equal Access to 24 Justice Act (EAJA), 28 U.S.C. § 2412(d). This amount represents compensation for all legal 25 services rendered on behalf of Plaintiff by counsel in connection with this civil action, in 26 accordance with 28 U.S.C. §§ 1920; 2412(d). 27 After the Court issues an order for EAJA fees to Plaintiff, the government will consider 28 the matter of Plaintiff’s assignment of EAJA fees to counsel, if any. Pursuant to Astrue v. Ratliff, 1 560 U.S. 586, 598, 130 S.Ct. 2521, 177 L.Ed.2d 91 (2010), the ability to honor any assignment 2 will depend on whether the fees are subject to any offset allowed under the United States 3 Department of the Treasury’s Offset Program. After the order for EAJA fees is entered, the 4 government will determine whether they are subject to any offset. 5 Fees shall be made payable to Plaintiff, but if the Department of the Treasury determines 6 that Plaintiff does not owe a federal debt, then the government shall cause the payment of fees, 7 expenses and costs to be made directly to counsel, Francesco Benavides, pursuant to the 8 assignment executed by Plaintiff. Any payments made shall be delivered to counsel. 9 This stipulation constitutes a compromise settlement of Plaintiff’s request for EAJA 10 attorney fees, and does not constitute an admission of liability on the part of Defendant under the 11 EAJA or otherwise. Payment of the agreed amount shall constitute a complete release from, and 12 bar to, any and all claims that Plaintiff and/or counsel including counsel’s firm may have relating 13 to EAJA attorney fees or costs in connection with this action. 14 This award is without prejudice to the rights of counsel and/or counsel’s firm to seek 15 Social Security Act attorney fees under 42 U.S.C. § 406(b), subject to the savings clause 16 provisions of the EAJA. Respectfully submitted, 17 18 Date: December 4, 2023 /s/ Francesco P. Benavides* FRANCESCO P. BENAVIDES 19 (as authorized by email on December 4, 2023) Attorney for Plaintiff 20 21 Date: December 4, 2023 PHILLIP A. TALBERT 22 United States Attorney MATHEW W. PILE 23 Associate General Counsel 24 Social Security Administration 25 By: /s/ James Ki 26 JAMES KI Special Assistant United States Attorney 27 Social Security Administration Attorney for Defendant 28 1 ORDER 2 Based upon the parties’ Stipulation and Unopposed Motion for the Award and Payment of 3 Equal Access to Justice Act Fees (Doc. 17), IT IS ORDERED that fees in the amount of $7,600.00 4 as authorized by 28 U.S.C. § 2412, be awarded subject to the terms of the Stipulation. 5 IT IS SO ORDERED. 6 7 Dated: December 5, 2023 /s/ Sheila K. Oberto . 8 UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28