(SS) Dempster v. Commissioner of Social Security ( 2023 )

1 PHILLIP A. TALBERT United States Attorney 2 MATHEW W. PILE Associate General Counsel 3 Office of Program Litigation, Office 7 Oscar Gonzalez de Llano 4 Special Assistant United States Attorney Office of the General Counsel 5 Social Security Administration 6401 Security Boulevard 6 Baltimore, MD 21235 Telephone: (510) 970-4818 7 Email: Oscar.Gonzalez@ssa.gov Attorneys for Defendant 8 9 UNITED STATES DISTRICT COURT 10 EASTERN DISTRICT OF CALIFORNIA 11 12 MARC A. DEMPSTER, No. 2:21-cv-01393-JDP 13 Plaintiff, STIPULATION FOR THE AWARD AND 14 v. PAYMENT OF ATTORNEY FEES AND 15 KILOLO KIJAKAZI, EXPENSES PURSUANT TO THE EQUAL ACCESS TO JUSTICE ACT, 28 U.S.C. Acting Commissioner of Social Security, 16 § 2412(d), AND COSTS PURSUANT TO 28 Defendant. U.S.C. § 1920; [PROPOSED] ORDER 17 18 19 IT IS HEREBY STIPULATED by and between the parties through their undersigned 20 counsel, subject to the approval of the Court, that Plaintiff be awarded attorney fees and expenses 21 in the amount $5,000.00 (FIVE THOUSAND dollars) under the Equal Access to Justice Act 22 (EAJA), 28 U.S.C. § 2412(d), and costs in the amount of $0 under 28 U.S.C. § 1920. This 23 amount represents compensation for all legal services rendered on behalf of Plaintiff by counsel 24 in connection with this civil action, in accordance with 28 U.S.C. §§ 1920; 2412(d). 25 After the Court issues an order for EAJA fees to Plaintiff, the government will consider 26 the matter of Plaintiff’s assignment of EAJA fees to Harvey P. Sackett (“Counsel”), if 27 any. Pursuant to Astrue v. Ratliff, 560 U.S. 586, 598, 130 S.Ct. 2521, 177 L.Ed.2d 91 (2010), the 28 1 ability to honor any assignment will depend on whether the fees are subject to any offset allowed 2 under the United States Department of the Treasury’s Offset Program. After the order for EAJA 3 fees is entered, the government will determine whether they are subject to any offset. 4 Fees shall be made payable to Plaintiff, but if the Department of the Treasury determines 5 that Plaintiff does not owe a federal debt, then the government shall cause the payment of fees, 6 expenses and costs to be made directly to Counsel, pursuant to the assignment executed by 7 Plaintiff. Any payments made shall be delivered to Counsel. 8 This stipulation constitutes a compromise settlement of Plaintiff’s request for EAJA 9 attorney fees, and does not constitute an admission of liability on the part of Defendant under the 10 EAJA or otherwise. Payment of the agreed amount shall constitute a complete release from, and 11 bar to, any and all claims that Plaintiff and/or counsel including counsel’s firm may have relating 12 to EAJA attorney fees or costs in connection with this action. 13 This award is without prejudice to the rights of Counsel and/or Counsel’s firm to seek 14 Social Security Act attorney fees under 42 U.S.C. § 406(b), subject to the savings clause 15 provisions of the EAJA. 16 Respectfully submitted, 17 18 PHILLIP A. TALBERT United States Attorney 19 DATE: May 10, 2023 By: s/ Oscar Gonzalez de Llano 20 OSCAR GONZALEZ DE LLANO Special Assistant United States Attorney 21 Attorneys for Defendant 22 Respectfully submitted, 23 Attorney for Plaintiff 24 DATE: May 10, 2023 By: s/ Harvey Peter Sackett * 25 Harvey Peter Sackett 26 Sackett & Associates (*as authorized by email) 27 28 ORDER 2 ° Based upon the parties’ Stipulation for the Award and Payment of Equal Access to Justice ‘ Act Fees, Costs, and Expenses, IT IS ORDERED that fees and expenses in the amount of $5,000 ° as authorized by 28 U.S.C. § 2412, and costs in the amount of $0 as authorized by 28 U.S.C. § 1920, be awarded subject to the terms of the Stipulation. 7 8 | IT IS SO ORDERED. 9 / 19 | Dated: _ May 12,2023 _ gene Ws JEREMY D. PETERSON 11 UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28