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

1 Francesco Benavides, CSBN 258924 Law Offices of Francesco Benavides 2 1990 N. California Blvd. Suite 20 Walnut Creek, CA 94596 3 Tel: (925) 222-7071 4 Fax: (925) 522-5306 Email: francesco@benavidesdisabilitylaw.com 5 6 Attorney for Plaintiff TINA FAIN 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 FRESNO DIVISION 11 TINA FAIN, Case No. 1:22-cv-01257-SKO 12 Plaintiff, ORDER ON STIPULATION AND 13 UNOPPOSED MOTION FOR THE 14 v. AWARD AND PAYMENT OF ATTORNEY FEES AND EXPENSES 15 KILOLO KIJAKAZI, Acting PURSUANT TO THE EQUAL ACCESS 16 Commissioner of Social Security, TO JUSTICE ACT 17 Defendant. (Doc. 19) 18 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 $7,500.00, under the Equal Access to 23 Justice Act (EAJA), 28 U.S.C. § 2412(d), and no costs under 28 U.S.C. § 1920. This 24 amount represents compensation for all legal services rendered on behalf of Plaintiff by 25 26 counsel in connection with this civil action, in accordance with 28 U.S.C. §§ 2412(d), 27 1920. 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 Plaintiff’s counsel, 11 Francesco Benavides, pursuant to the assignment executed by Plaintiff. 12 This stipulation constitutes a compromise settlement of Plaintiff’s request for 13 EAJA attorney fees and does not constitute an admission of liability on the part of 14 Defendant under the EAJA or otherwise. Payment of the agreed amount shall 15 constitute a complete release from, and bar to, any and all claims that Plaintiff and/or 16 Francesco Benavides, including the Law Offices of Francesco Benavides, may have 17 relating to EAJA attorney fees in connection with this action. 18 Any EAJA funds paid directly to Plaintiff’s attorney may be made via EFT or 19 check. 20 This award is without prejudice to the rights of Francesco Benavides to seek 21 Social Security Act attorney fees under 42 U.S.C. § 406(b), subject to the savings 22 clause provisions of the EAJA. 23 24 Respectfully submitted, 25 26 Dated: November 16, 2023 Law Offices of Francesco Benavides 27 By: /s/ Francesco Benavides 1 FRANCESCO P. BENAVIDES Attorney for Plaintiff 2 3 4 5 Dated: November 16, 2023 PHILLIP A. TALBERT 6 United States Attorney MATHEW W. PILE 7 Associate General Counsel 8 Social Security Administration 9 By: Lars Nelson* 10 LARS NELSON 11 Special Assistant U.S. Attorney Attorneys for Defendant 12 (*Permission to use electronic signature 13 obtained via email on November 15, 2023). 14 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 Award and Payment of Equal Access to Justice Act Fees and Expenses (Doc. 19), 4 IT IS ORDERED that fees and expenses in the amount of $7,500.00 as 5 6 authorized by 28 U.S.C. § 2412, and no costs under 28 U.S.C. § 1920, be awarded 7 subject to the terms of the Stipulation. 8 9 10 IT IS SO ORDERED. 11 Dated: November 17, 2023 /s/ Sheila K. Oberto . 12 UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27