(SS) Cervantez 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, Susan Cervantez 7 8 9 UNITED STATES DISTRICT COURT 10 FOR THE EASTERN DISTRICT OF CALIFORNIA FRESNO DIVISION 11 12 Susan Cervantez, Case No. 1:23-cv-00185-SKO 13 Plaintiff, STIPULATION AND UNOPPOSED 14 MOTION FOR THE AWARD AND v. PAYMENT OF ATTORNEY FEES 15 AND EXPENSES PURSUANT TO THE 16 Kilolo Kijakazi, Acting EQUAL ACCESS TO JUSTICE ACT; Commissioner of Social Security, ORDER 17 18 Defendant. (Doc. 22) 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 SIX HUNDRED 23 FIFTY-SIX DOLLARS AND 77/100 ($5,656.77) under the Equal Access to Justice Act 24 (EAJA), 28 U.S.C. § 2412(d), and costs in the amount of ZERO dollars ($0.00) under 25 28 U.S.C. §1920. This amount represents compensation for all legal services rendered 26 on behalf of Plaintiff by counsel in connection with this civil action, in accordance with 27 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. Additionally, any payment of 13 costs under 28 U.S.C. §1920 may be made either by electronic fund transfer (ETF) or 14 by check. 15 This stipulation constitutes a compromise settlement of Plaintiff’s request for 16 EAJA attorney fees, and does not constitute an admission of liability on the part of 17 Defendant under the EAJA or otherwise. Payment of the agreed amount shall 18 constitute a complete release from, and bar to, any and all claims that Plaintiff and/or 19 Counsel including Counsel’s firm may have relating to EAJA attorney fees in 20 connection with this action. 21 This award is without prejudice to the rights of Counsel and/or Counsel’s firm 22 to seek Social Security Act attorney fees under 42 U.S.C. § 406(b), subject to the 23 savings clause provisions of the EAJA. 24 Respectfully submitted, 25 26 Dated: December 12, 2023 /s/ Jonathan O. Peña 27 1 J ONATHAN O. PEÑA Attorney for Plaintiff 2 3 Dated: December 12, 2023 PHILLIP A. TALBERT United States Attorney 4 MATHEW W. PILE 5 Associate General Counsel Office of Program Litigation 6 Social Security Administration 7 8 By: _*_Margaret Lehrkind Margaret Lehrkind 9 Special Assistant U.S. Attorney 10 Attorneys for Defendant (*Permission to use electronic signature 11 obtained via email on December 12, 2023). 12 ORDER 13 14 Based upon the parties’ foregoing Stipulation and Unopposed Motion for the 15 Award and Payment of Equal Access to Justice Act Fees and Expenses (the 16 “Stipulation”) (Doc. 22), 17 18 IT IS ORDERED that fees and expenses in the amount of FIVE THOUSAND 19 SIX HUNDRED FIFTY-SIX DOLLARS AND 77/100 ($5,656.77) as authorized by the 20 Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d), and costs in the amount of 21 22 ZERO dollars ($0.00) under 28 U.S.C. §1920, be awarded subject to the terms of the 23 Stipulation. 24 25 IT IS SO ORDERED. 26 Dated: December 13, 2023 /s/ Sheila K. Oberto . 27 UNITED STATES MAGISTRATE JUDGE