(SS) Middleton 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, Betty Jo Middleton 7 8 9 UNITED STATES DISTRICT COURT 10 FOR THE EASTERN DISTRICT OF CALIFORNIA FRESNO DIVISION 11 12 Betty Jo Middleton, Case No. 1:22-cv-01240-SKO 13 Plaintiff, STIPULATION AND UNOPPOSED 14 MOTION FOR THE AWARD AND v. PAYMENT OF ATTORNEY FEES 15 AND EXPENSES PURSUANT TO THE 16 Kilolo Kijakazi, Acting EQUAL ACCESS TO JUSTICE ACT; Commissioner of Social Security, ORDER 17 18 Defendant. (Doc. 23) 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 NINE HUNDRED 22 FORTY-NINE DOLLARS AND 58/100 ($4,949.58) 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 26 rendered on behalf of Plaintiff by counsel in connection with this civil action, in 27 accordance with 28 U.S.C. §§ 1920, 2412(d). 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 J ONATHAN O. PEÑA 26 Attorney for Plaintiff 27 1 Dated: July 20, 2023 PHILLIP A. TALBERT United States Attorney 2 MATHEW W. PILE Associate General Counsel 3 Office of Program Litigation 4 Social Security Administration 5 By: _*_Timothy A. Razel 6 Timothy A. Razel Special Assistant U.S. Attorney 7 Attorneys for Defendant 8 (*Permission to use electronic signature 9 obtained via email on July 20, 2023). 10 ORDER 11 Based upon the parties’ foregoing Stipulation and Unopposed Motion for the 12 13 Award and Payment of Equal Access to Justice Act Fees and Expenses (the 14 “Stipulation”) (Doc. 23), 15 IT IS ORDERED that fees and expenses in the amount of FOUR THOUSAND 16 17 NINE HUNDRED FORTY-NINE DOLLARS AND 58/100 ($4,949.58) as authorized 18 by the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d) and costs in the 19 amount of ZERO dollars ($0.00) under 28 U.S.C. §1920, be awarded subject to the 20 21 terms of the Stipulation. 22 23 IT IS SO ORDERED. 24 25 Dated: July 21, 2023 /s/ Sheila K. Oberto . UNITED STATES MAGISTRATE JUDGE 26 27