(SS) Benavidez 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 MICHELLE YVETTE BENAVIDEZ 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 MICHELLE YVETTE BENAVIDEZ, No. 1:23-CV-00773 (BAM) 11 Plaintiff, 12 v. STIPULATION AND [PROPOSED] ORDER FOR AWARD AND PAYMENT 13 KILOLO KIJAKAZI, OF ATTORNEYS FEES PURSUANT TO ACTING COMMISSIONER OF THE EQUAL ACCESS TO JUSTICE ACT 14 SOCIAL SECURITY, (28 U.S.C. §2412(d)) 15 Defendant. 16 17 18 19 20 21 22 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 Michelle Yvette Benavidez (“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 five thousand nine hundred and sixty dollars and twenty-five cents ($5,960.25). 5 This represents compensation for legal services rendered on behalf of Plaintiff by counsel in 6 connection with the above-referenced civil action. 7 After the Court issues an Order for EAJA fees to Plaintiff, the government will consider 8 the matter of Plaintiff’s assignment of EAJA fees to Plaintiff’s attorney. Pursuant to Astrue v. 9 Ratliff, 560 U.S. 586, 598 (2010), the ability to honor the assignment will depend on whether the 10 attorney fees are subject to any offset allowed under the United States Department of the 11 Treasury’s Offset Program. After the Order for EAJA fees is entered, the government will 12 determine whether they are subject to any offset. 13 Fees shall be made payable to Plaintiff, but if the Department of the Treasury determines 14 that Plaintiff does not owe a federal debt subject to offset, then the government shall cause the 15 payment of fees approved to be made payable to Melissa Newel or Newel Law (collectively 16 “Plaintiff’s counsel”), pursuant to the assignment executed by Plaintiff. Any and all payments 17 made shall be delivered to Plaintiff’s counsel. 18 This stipulation constitutes a compromise settlement of Plaintiff’s request for EAJA 19 attorney fees and does not constitute an admission of liability on the part of Defendant under 20 EAJA. Payment of the agreed amount shall constitute a complete release from, and bar to, any 21 and all claims that Plaintiff and/or Plaintiff’s counsel may have relating to EAJA attorney fees 22 and expenses in connection with this action. 23 /// 24 /// 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: December 7, 2023 NEWEL LAW 5 6 By: Melissa Newel 7 Melissa Newel Attorney for Plaintiff 8 MICHELLE YEVETTE BENAVIDEZ 9 10 Dated: December 7, 2023 PHILLIP A. TALBERT United States Attorney 11 MATHEW W. PILE Associate General Counsel 12 Social Security Administration 13 By: Marcelo Illarmo* 14 MARCELO ILLARMO (*Authorized by email dated 12/05/2023) 15 Special Assistant U.S. Attorney Attorneys for Defendant 16 17 18 ORDER 19 IT IS HEREBY ORDERED that, pursuant to the Equal Access to Justice Act, 28 U.S.C. 20 §2412(d), attorney fees in the amount of five thousand nine hundred sixty dollars and twenty- 21 five cents ($5,960.25) be awarded subject to the terms of the Stipulation. 22 IT IS SO ORDERED. 23 24 Dated: December 8, 2023 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 25 26 27 28