(SS) Smith 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 4 Fresno, CA 93721 Telephone: 559-439-9700 5 Facsimile: 559-439-9723 6 Email: info@jonathanpena.com Attorney for Plaintiff, Kimalae R Smith 7 8 9 UNITED STATES DISTRICT COURT 10 FOR THE EASTERN DISTRICT OF CALIFORNIA 11 12 Kimalae R Smith, No. 2:21-cv-0326-DB 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; AND 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 TWO THOUSAND FIVE-HUNDRED 22 FORTY-FIVE DOLLARS and 21/100 ($0.00) under the Equal Access to Justice Act 23 (EAJA), 28 U.S.C. § 2412(d), and cost in the amount of zero dollars ($0.00) under 28 24 U.S.C. §1920. This amount represents compensation for all legal services rendered on 25 behalf of Plaintiff by counsel in connection with this civil action, in accordance with 28 26 U.S.C. § 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 to 12 Plaintiff’s counsel, Jonathan O. Peña. 13 This stipulation constitutes a compromise settlement of Plaintiff’s request for 14 EAJA attorney fees, and does not constitute an admission of liability on the part of 15 Defendant under the EAJA or otherwise. Payment of the agreed amount shall 16 constitute a complete release from, and bar to, any and all claims that Plaintiff and/or 17 Counsel including Counsel’s firm may have relating to EAJA attorney fees in 18 connection with this action. 19 This award is without prejudice to the rights of Counsel and/or Counsel’s firm 20 to seek Social Security Act attorney fees under 42 U.S.C. § 406(b), subject to the 21 savings clause provisions of the EAJA. 22 Respectfully submitted, 23 24 Dated: May 5, 2022 /s/ Jonathan O. Peña 25 J ONATHAN O. PEÑA 26 Attorney for Plaintiff 27 Dated: May 5, 2022 PHILLIP A. TALBERT 1 United States Attorney PETER K. THOMPSON 2 Acting Regional Chief Counsel, Region IX Social Security Administration 3 4 By: _*_Linda H Green Linda H Green 5 Special Assistant U.S. Attorney 6 Attorneys for Defendant (*Permission to use electronic signature 7 obtained via email on May 4, 2022). 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 1 ORDER 2 Pursuant to the parties’ stipulation, IT IS SO ORDERED. 3 4 DATED: May 6, 2022 /s/ DEBORAH BARNES 5 UNITED STATES MAGISTRATE JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27