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

1 Jonathan O. Peña, Esq. 2 CA Bar ID No.: 278044 Peña & Bromberg, PLC 3 2440 Tulare St., Ste. 320 4 Fresno, CA 93721 Telephone: 559-439-9700 5 Facsimile: 559-439-9723 6 Email: info@jonathanpena.com Attorney for Plaintiff, Yai Xiong 7 8 9 UNITED STATES DISTRICT COURT 10 FOR THE EASTERN DISTRICT OF CALIFORNIA FRESNO DIVISION 11 12 Yai Xiong, Case No. 1:22-cv-00491-HBK 13 Plaintiff, STIPULATION FOR THE AWARD 14 AND PAYMENT OF ATTORNEY v. FEES AND EXPENSES PURSUANT 15 TO THE EQUAL ACCESS TO 16 Kilolo Kijakazi, Acting JUSTICE ACT; |PROPOSED| ORDER Commissioner of Social Security, 17 18 Defendant. 19 IT IS HEREBY STIPULATED by and between the parties through their 20 undersigned counsel, subject to the approval of the Court, that Plaintiff be awarded 21 attorney fees and expenses in the amount of FOUR THOUSAND SEVEN HUNDRED 22 EIGHTY-FIVE DOLLARS AND 11/100 ($4,785.11) under the Equal Access to Justice 23 Act (EAJA), 28 U.S.C. § 2412(d), and costs in the amount of ZERO dollars ($0.00) 24 under 28 U.S.C. §1920. This amount represents compensation for all legal services 25 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 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 Counsel, pursuant to 11 the assignment executed by Plaintiff. Any payments made shall be delivered and 12 made payable to Plaintiff’s counsel, Jonathan O. Peña. 13 Plaintiff’s net worth did not exceed $2,000,000.00 when this action was filed. 14 This stipulation constitutes a compromise settlement of Plaintiff’s request for 15 EAJA attorney fees, and does not constitute an admission of liability on the part of 16 Defendant under the EAJA or otherwise. Payment of the agreed amount shall 17 constitute a complete release from, and bar to, any and all claims that Plaintiff and/or 18 Counsel including Counsel’s firm may have relating to EAJA attorney fees in 19 connection with this action. 20 This award is without prejudice to the rights of Counsel and/or Counsel’s firm 21 to seek Social Security Act attorney fees under 42 U.S.C. § 406(b), subject to the 22 savings clause provisions of the EAJA. 23 Respectfully submitted, 24 25 Dated: July 20, 2023 /s/ Jonathan O. Peña 26 27 1 JONATHAN O. PENA Attorney for Plaintiff 2 3 || Dated: July 20, 2023 PHILLIP A. TALBERT A United States Attorney MATHEW W. PILE 5 Associate General Counsel 6 Office of Program Litigation Social Security Administration 7 8 By: _*_ Timothy A. Razel Timothy A. Razel 9 Special Assistant U.S. Attorney 10 Attorneys for Defendant (*Permission to use electronic signature obtained via email on July 20, 2023). 12 3 |PROPOSED| ORDER 14 Based upon the parties’ Stipulation for the Award and Payment of Equal Access 15 | to Justice Act Fees and Expenses (the “Stipulation’’), 16 IT IS ORDERED that fees and expenses in the amount of FOUR THOUSAND 18 || SEVEN HUNDRED EIGHTY-FIVE DOLLARS AND 11/100 ($4,785.11) as 19 | authorized by the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d) and costs in 20 5 the amount of ZERO dollars ($0.00) under 28 U.S.C. §1920, be awarded subject to the 92 || terms of the Stipulation. 23 94 || IT IS SO ORDERED. 25 Dated: _ July 20, 2023 : 36 TIED STATES DISTRICT JUDGE 27 28 -3-