(SS) McDaniel 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, Braden Scott McDaniel 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 FRESNO DIVISION 11 Braden Scott McDaniel, Case No. 1:21-cv-00676-SKO 12 Plaintiff, STIPULATION FOR THE AWARD 13 AND PAYMENT OF ATTORNEY 14 v. FEES AND EXPENSES PURSUANT TO THE EQUAL ACCESS TO 15 Kilolo Kijakazi, Acting JUSTICE ACT; ORDER RE: 16 Commissioner of Social Security, STIPULATION AND DENYING MOTION FOR ATTORNEY’S FEES 17 Defendant. AS MOOT 18 (Docs. 24 & 26) 19 20 21 IT IS HEREBY STIPULATED by and between the parties through their 22 undersigned counsel, subject to the approval of the Court, that Plaintiff be awarded 23 attorney fees and expenses in the amount of FOUR THOUSAND FIVE HUNDRED 24 NINTY-ONE DOLLARS AND 72/100 ($4,591.72) under the Equal Access to Justice 25 Act (EAJA), 28 U.S.C. § 2412(d), and costs in the amount of ZERO dollars ($0.00) 26 under 28 U.S.C. §1920. This amount represents compensation for all legal services 27 rendered on behalf of Plaintiff by counsel in connection with this civil action, in 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 Respectfully submitted, 23 24 Dated: May 4, 2023 /s/ Jonathan O. Peña J ONATHAN O. PEÑA 25 Attorney for Plaintiff 26 27 Dated: May 4, 2023 PHILLIP A. TALBERT United States Attorney 1 MATHEW W. PILE Associate General Counsel 2 Office of Program Litigation Social Security Administration 3 4 By: _*_Zachary Berkoff-Cane Zachary Berkoff-Cane 5 Special Assistant U.S. Attorney 6 Attorneys for Defendant (*Permission to use electronic signature 7 obtained via email on May 4, 2023) 8 9 ORDER 10 Based upon the parties’ Stipulation for the Award and Payment of Equal Access 11 to Justice Act Fees and Expenses (the “Stipulation”) (Doc. 26), 12 IT IS ORDERED that fees and expenses in the amount of FOUR THOUSAND 13 14 FIVE HUNDRED NINTY-ONE DOLLARS AND 72/100 ($4,591.72) as authorized by 15 the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d), and costs in the amount 16 of ZERO dollars ($0.00) under 28 U.S.C. §1920, be awarded subject to the terms of the 17 18 Stipulation. 19 IT IS FURTHER ORDERED that Plaintiff’s motion for attorney’s fees (Doc. 20 24) is DENIED as MOOT. 21 22 23 IT IS SO ORDERED. 24 Dated: May 4, 2023 /s/ Sheila K. Oberto . 25 UNITED STATES MAGISTRATE JUDGE 26 27