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

1 2 3 UNITED STATES DISTRICT COURT 4 EASTERN DISTRICT OF CALIFORNIA 5 FRESNO DIVISION 6 7 No. 1:20-cv-01424-GSA MARK DANIEL SWARTOUT, 8 Plaintiff, STIPULATION AND ORDER FOR THE 9 AWARD AND PAYMENT OF ATTORNEY v. FEES AND EXPENSES PURSUANT TO THE 10 EQUAL ACCESS TO JUSTICE ACT, 28 U.S.C. § KILOLO KIJAKAZI, 11 Acting Commissioner of Social Security, 2412(d), AND COSTS PURSUANT TO 28 U.S.C. § 1920 12 Defendant. (Doc. 32) 13 14 This stipulation is intended to replace the Motion for Attorney Fees Plaintiff filed on 15 May 9, 2022. 16 IT IS HEREBY STIPULATED by and between the parties through their undersigned 17 counsel, subject to the approval of the Court, that Plaintiff be awarded attorney fees and 18 expenses in the amount $6,650.00 (SIX THOUSAND SIX HUNDRED AND FIFTY dollars) 19 20 under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d), and costs in the amount of 21 $400.00 (FOUR HUNDRED dollars) under 28 U.S.C. § 1920. This amount represents 22 compensation for all legal services rendered on behalf of Plaintiff by counsel in connection with 23 this civil action, in accordance with 28 U.S.C. §§ 1920; 2412(d). 24 After the Court issues an order for EAJA fees to Plaintiff, the government will consider 25 the matter of Plaintiff’s assignment of EAJA fees to counsel, if any. Pursuant to Astrue v. 26 27 Ratliff, 560 U.S. 586, 598, 130 S.Ct. 2521, 177 L.Ed.2d 91 (2010), the ability to honor any 28 assignment will depend on whether the fees are subject to any offset allowed under the United 1 States Department of the Treasury’s Offset Program. After the order for EAJA fees is entered, 2 the government will determine whether they are subject to any offset. 3 Fees shall be made payable to Plaintiff, but if the Department of the Treasury 4 determines that Plaintiff does not owe a federal debt, then the government shall cause the 5 payment of fees, expenses and costs to be made directly to counsel, Olinsky Law Group, 6 7 pursuant to the assignment executed by Plaintiff. Any payments made shall be delivered to 8 counsel, Olinsky Law Group. 9 This stipulation constitutes a compromise settlement of Plaintiff’s request for EAJA 10 attorney fees, and does not constitute an admission of liability on the part of Defendant under 11 the EAJA or otherwise. Payment of the agreed amount shall constitute a complete release from, 12 and bar to, any and all claims that Plaintiff and/or counsel including counsel’s firm may have 13 relating to EAJA attorney fees in connection with this action. 14 15 This award is without prejudice to the rights of counsel and/or counsel’s firm to seek 16 Social Security Act attorney fees under 42 U.S.C. § 406(b), subject to the savings clause 17 provisions of the EAJA. 18 19 Respectfully submitted, 20 DATE: May 17, 2022 /s/ Stuart Barasch 21 STUART BARASCH Attorney for Plaintiff 22 (as approved via email) 23 PHILLIP A. TALBERT 24 United States Attorney 25 DATE: May 17, 2022 By s/ Jennifer A. Kenney JENNIFER A. KENNEY 26 Special Assistant United States Attorney 27 Attorneys for Defendant 28 1 2 IT IS SO ORDERED. 3 4 Dated: May 17, 2022 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28