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

1 Jonathan O. Peña, Esq. 2 CA Bar ID No.: 278044 Peña & Bromberg, PLC 3 2440 Tulare St., Ste. 320 Fresno, CA 93721 4 Telephone: 559-439-9700 5 Facsimile: 559-439-9723 Email: info@jonathanpena.com 6 Attorney for Plaintiff, Phetsamone Xayavongsa 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 PHETSAMONE XAYAVONGSA, Case No. 1:21-cv-00454-EPG 11 Plaintiff, ORDER RE: STIPULATION FOR THE AWARD 12 AND PAYMENT OF ATTORNEY FEES AND v. EXPENSES PURSUANT TO THE EQUAL 13 ACCESS TO JUSTICE ACT 14 KILOLO KIJAKAZI, Acting Commissioner of Social Security, (ECF No. 22). 15 Defendant. 16 IT IS HEREBY STIPULATED by and between the parties through their undersigned counsel, 17 subject to the approval of the Court, that Plaintiff be awarded attorney fees and expenses in the amount 18 of FOUR THOUSAND DOLLARS AND 00/100 ($4,000.00) under the Equal Access to Justice Act 19 (EAJA), 28 U.S.C. § 2412(d), and cost in the amount of ZERO dollars ($0.00) under 28 U.S.C. §1920. 20 This amount represents compensation for all legal services rendered on behalf of Plaintiff by counsel 21 in connection with this civil action, in accordance with 28 U.S.C. § 2412(d). 22 After the Court issues an order for EAJA fees to Plaintiff, the government will consider the 23 matter of Plaintiff’s assignment of EAJA fees to counsel. Pursuant to Astrue v. Ratliff, 560 U.S. 586, 24 598, 130 S.Ct. 2521, 177 L.Ed.2d 91 (2010), the ability to honor the assignment will depend on 25 whether the fees are subject to any offset allowed under the United States Department of the 26 Treasury’s Offset Program. After the order for EAJA fees is entered, the government will determine 27 whether they are subject to any offset. 1 Fees shall be made payable to Plaintiff, but if the Department of the Treasury determines that 2 Plaintiff does not owe a federal debt, then the government shall cause the payment of fees, expenses 3 and costs to be made directly to Counsel, pursuant to the assignment executed by Plaintiff. Any 4 payments made shall be delivered and made payable to Plaintiff’s counsel, Jonathan O. Peña. 5 This stipulation constitutes a compromise settlement of Plaintiff’s request for EAJA attorney fees, and does not constitute an admission of liability on the part of Defendant under the EAJA or 6 otherwise. Payment of the agreed amount shall constitute a complete release from, and bar to, any 7 and all claims that Plaintiff and/or Counsel including Counsel’s firm may have relating to EAJA 8 attorney fees in connection with this action. 9 This award is without prejudice to the rights of Counsel and/or Counsel’s firm to seek Social 10 Security Act attorney fees under 42 U.S.C. § 406(b), subject to the savings clause provisions of the 11 EAJA. 12 Respectfully submitted, 13 14 Dated: November 22, 2022 /s/ Jonathan O. Peña 15 J ONATHAN O. PEÑA Attorney for Plaintiff 16 17 Dated: November 22, 2022 PHILLIP A. TALBERT United States Attorney 18 MATHEW W. PILE Associate General Counsel 19 Office of Program Litigation 20 Social Security Administration 21 By: _*_Marcelo N. Illarmo Marcelo N. Illarmo 22 Special Assistant U.S. Attorney 23 Attorneys for Defendant (*Permission to use electronic signature 24 obtained via email on November 22, 2022). 25 26 27 1 2 ORDER 3 Based upon the parties’ stipulation (ECF No. 22) for the Award and Payment of Equal Access 4 || to Justice Act Fees and Expenses, IT IS ORDERED that fees and expenses in the amount of FOUR 5 THOUSAND DOLLARS AND 00/100 ($4,000.00) as authorized by the Equal Access to Justice Act 6 (EAJA), 28 U.S.C. § 2412(d), and no costs as authorized by 28 U.S.C. § 1920, be awarded subject to 7 the terms of the stipulation. 8 IT IS SO ORDERED. 9 10 | Dated: __November 28, 2022 [sf hey — UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -3-