(SS) Averill-Marcogliese 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, Samantha Regina Averill-Marcogliese 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 FRESNO DIVISION 11 Samantha Regina Averill- Case No. 1:21-cv-00277-SKO (SS) 12 Marcogliese, STIPULATION FOR THE AWARD 13 Plaintiff, AND PAYMENT OF ATTORNEY 14 FEES AND EXPENSES PURSUANT v. TO THE EQUAL ACCESS TO 15 JUSTICE ACT; ORDER RE: 16 Kilolo Kijakazi, Acting STIPULATION AND DENYING Commissioner of Social Security, MOTION FOR ATTORNEY’S FEES 17 AS MOOT 18 Defendant. (Docs. 19 & 21) 19 20 IT IS HEREBY STIPULATED by and between the parties through their 21 undersigned counsel, subject to the approval of the Court, that Plaintiff be awarded 22 attorney fees and expenses in the amount of FIVE THOUSAND ONE HUNDRED 23 DOLLARS AND 00/100 ($5,100.00) under the Equal Access to Justice Act (EAJA), 28 24 U.S.C. § 2412(d), and costs in the amount of FOUR HUNDRED AND TWO AND 25 00/100 dollars ($402.00) under 28 U.S.C. §1920. This amount represents compensation 26 for all legal services rendered on behalf of Plaintiff by counsel in connection with this 27 civil action, in 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 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 The Parties request that Plaintiff’s Motion for Attorney Fees (Doc. No. 19) be 23 withdrawn. 24 25 26 27 1 Respectfully submitted, 2 Dated: September 21, 2023 /s/ Jonathan O. Peña 3 J ONATHAN O. PEÑA 4 Attorney for Plaintiff 5 Dated: September 21, 2023 PHILLIP A. TALBERT 6 United States Attorney 7 MATHEW W. PILE Associate General Counsel 8 Office of Program Litigation 9 Social Security Administration 10 By: _*_Caspar I. Chan 11 Caspar I. Chan Special Assistant U.S. Attorney 12 Attorneys for Defendant 13 (*Permission to use electronic signature obtained via email on September 21, 2023). 14 15 ORDER 16 Based upon the parties’ foregoing Stipulation for the Award and Payment of Equal Access to 17 Justice Act Fees and Expenses (the “Stipulation”) (Doc. 21) 18 IT IS ORDERED that fees and expenses in the amount of FIVE THOUSAND ONE 19 HUNDRED DOLLARS AND 00/100 ($5,100.00) as authorized by the Equal Access to Justice Act 20 (EAJA), 28 U.S.C. § 2412(d) and costs in the amount of FOUR HUNDRED AND TWO AND 00/100 21 22 dollars ($402.00) under 28 U.S.C. §1920, be awarded subject to the terms of the Stipulation. 23 IT IS FURTHER ORDERED that Plaintiff’s motion for attorney’s fees (Doc. 19) is DENIED 24 as MOOT. 25 26 IT IS SO ORDERED. 27 Dated: September 21, 2023 /s/ Sheila K. Oberto . 1 UNITED STATES MAGISTRATE JUDGE 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27