(SS) Bernshausen v. Commissioner of Social Security ( 2022 )

PHILLIP A. TALBERT 1 United States Attorney 2 MATHEW W. PILE, WSBA No. 32245 Associate General Counsel 3 Office of Program Litigation, Office 7 Social Security Administration 4 MARCELO ILLARMO (MABN 670079) 5 Special Assistant United States Attorney 160 Spear Street, Suite 800 6 San Francisco, California 94105 Telephone: (415) 977-8944 7 Facsimile: (415) 744-0134 8 Email: Marcelo.Illarmo@ssa.gov 9 Attorneys for Defendant 10 UNITED STATES DISTRICT COURT 11 EASTERN DISTRICT OF CALIFORNIA 12 BECKY BERNSHAUSEN, ) Case No. 2:21-cv-01520-DMC ) 13 Plaintiff ) STIPULATION AND 14 ) ORDER FOR AWARD OF ATTORNEY’S v. ) FEES UNDER THE EQUAL ACCESS TO 15 ) JUSTICE ACT (EAJA) KILOLO KIJAKAZI, ) 16 Acting Commissioner of Social Security, ) 17 ) Defendant ) 18 ) ____________________________________) 19 IT IS HEREBY STIPULATED by and between the parties through their undersigned counsel, 20 subject to the approval of the Court, that Plaintiff shall be awarded attorney’s fees and expenses 21 under the Equal Access to Justice Act (EAJA), 28 U.S.C. sec. 2412(d), in the amount of four 22 thousand six hundred seventy-seven dollars and twenty cents ($4,677.20) and no costs under 28 23 U.S.C. § 1920. This amount represents compensation for all legal services rendered on behalf of 24 Plaintiff by counsel in connection with this civil action, in accordance with 28 U.S.C. §§ 1920; 25 2412(d). Accordingly, should this Court award fees and expenses under EAJA pursuant to this 26 stipulation, Plaintiff’s motion for attorney fees (ECF 24) would be moot. 27 After the Court issues an order for EAJA fees to Plaintiff, the government will consider the 28 matter of any assignment of EAJA fees by Plaintiff to his counsel Jesse Kaplan (Counsel). Pursuant to Astrue v. Ratliff, 560 U.S. 586, 598, 130 S.Ct. 2521, 177 L.Ed.2d 91 (2010), the ability to honor 1 the assignment will depend on whether the fees are subject to any offset allowed under the United 2 States Department of the Treasury’s Offset Program. After the order for EAJA fees is entered, the 3 government will determine whether they are subject to any offset. 4 Fees shall be made payable to Plaintiff, but if the Department of the Treasury determines that 5 Plaintiff does not owe a federal debt, then the government shall cause the payment of fees, expenses 6 and costs to be made directly to Counsel pursuant to an assignment executed by Plaintiff. Any 7 payments made shall be delivered to Counsel. 8 This stipulation constitutes a compromise settlement of Plaintiff’s request for EAJA attorney 9 fees, and does not constitute an admission of liability on the part of Defendant under the EAJA or otherwise. Payment of the agreed amount shall constitute a complete release from, and bar to, any 10 and all claims that Plaintiff and/or Counsel, including his firm, may have relating to EAJA attorney 11 fees in connection with this action. 12 This award is without prejudice to the rights of Counsel to seek Social Security Act attorney 13 fees under 42 U.S.C. § 406(b), subject to the savings clause provisions of the EAJA . 14 15 Respectfully submitted, 16 17 Dated: November 3, 2022 18 By: /s/ Jesse Kaplan* JESSE KAPLAN 19 *By email authorization on 11/1/22 20 Attorney for Plaintiff 21 Dated: November 3, 2022 PHILLIP A. TALBERT 22 United States Attorney 23 By: /s/ Marcelo Illarmo 24 MARCELO ILLARMO Special Assistant United States Attorney 25 26 27 28 nen ene EI ESE IIE ED 1 2 Based upon the parties’ Stipulation for the Award and Payment of Equal Access to Justice Ac 3 Fees, Costs, and Expenses, IT IS ORDERED that fees and expenses in the amount of $4,677.20 as authorized by 28 U.S.C. § 2412, and no costs as authorized by 28 U.S.C. § 1920, be awarded subject 4 the terms of the Stipulation. Furthermore, Plaintiff's motion for attorney fees (ECF 24) is denied as moot. 5 ° Dated: November 7, 2022 Sco ’ DENNIS M. COTA 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 Stip. and Prop. Order for Fees E.D. Cal. 2:21-cv-01520-DMC