(SS) Gomez v. Commissioner of Social Security ( 2024 )

1 || HARVEY P. SACKETT (72488) 2 AND ASSOCIATES 3 A PROFESSIONAL LAW CORP. 4 ||548 Market Street, Suite 38822 San Francisco, California 94104-5401 5 || Telephone: (408) 295-7755 Facsimile: (408) 295-7444 6 || Email: hps@sackettlaw.com 7 || Attorney for Plaintiff 8 || /as 9 UNITED STATES DISTRICT COURT 10 EASTERN DISTRICT OF CALIFORNIA 1] FRESNO DIVISION 12 || KIMO C. GOMEZ, ) Case No.: 1:22-cv-00770-DAD-AC ) 13 Plaintiff, ) STIPULATION AND [PROPOSED] 14 ORDER FOR THE AWARD AND v. ) PAYMENT OF ATTORNEY FEES 15 ) PURSUANT TO THE EQUAL ACCESS TO JUSTICE ACT, 28 16 || MARTIN O’MALLEY,' U.S.C. § 2412(d) Commissioner of Social Security, ) 17 ) 12 Defendant. 19 20 . On December 20, 2023, this Court issued an order reversing the final decision of the 71 Defendant, Martin O’ Malley, the Commissioner of Social Security (Commissioner), with a 22 remand for a rehearing, 42 U.S.C. § 405(g) (sentence four); judgment was entered. 23 24 ' Martin O’Malley became the Commissioner of Social Security on December 20, 2023. 25 || Pursuant to Rule 25(d)(1) of the Federal Rules of Civil Procedure, Martin O’Malley should be substituted for Kilolo Kijakazi as Defendant in this suit. No further action need be taken to continue this suit by reason of the last sentence of section 205(g) of the Social Security Act, 42 97 || US.C. § 405(g). 28 KETT LAW CORP. STIPULATION AND [PROPOSED] ORDER FOR THE AWARD AND PAYMENT OF ATTORNEY Street, Suite 38822 1] FEES PURSUANT TO THE EQUAL ACCESS TO JUSTICE ACT, 28 U.S.C. § 2412(d) l In the interest of administrative and judicial economy, the parties have agreed to stipulate 2 || that an award of FIVE THOUSAND ONE HUNDRED FOUR DOLLARS AND SIXTY-EIGHT 3 CENTS ($5,104.68) in attorney fees under the Equal Access to Justice Act (EAJA), 28 U.S.C. 4 § 2412(d), 1s reasonable. This award is without prejudice to Plaintiff's right to seek attorney’s 5 || fees under section 206(b) of the Social Security Act, 42 U.S.C. § 406(b), subject to the offset 6 provisions of the EAJA. However, this award shall constitute a complete release from and bar to 7 any claims Plaintiff may have relating to EAJA fees and costs. Further, such award shall not be 8 | used as precedent in any future cases, nor be construed as a concession by the Commissioner that 9 || the original administrative decision denying benefits to Plaintiff was not substantially justified. 10 After the Court issues an order for EAJA fees to Plaintiff, the Government will consider 11 || the matter of Plaintiff's assignment of EAJA fees to Harvey P. Sackett (“Counsel”). Pursuant to 12 |! Astrue v. Ratliff, 560 U.S. 586 (2010), the ability to honor an assignment will depend on whether 13 || the fees are subject to any offset allowed under the United States Department of the Treasury’s 14 || Offset Program. After the order for EAJA is entered, the Government will determine whether 15 they are subject to offset. Fees shall be made payable to Plaintiff, but if the Department of 16 Treasury determines Plaintiff does not owe a federal debt, then the Government shall cause the 17 payment of fees, expenses, and costs to be made payable directly to Counsel, pursuant to the 18 assignment executed by Plaintiff. Any payments made shall be delivered and made payable to || Counsel. 20 Accordingly, Defendant agrees to pay Plaintiff $5,104.68 in attorney’s fees. 21 All parties whose signature lines appear in this document have consented to its filing. 22 || This award is without prejudice to the rights of Sackett and Associates and/or Harvey P. Sackett |! to seek Social Security Act attorney fees under 42 U.S.C. § 406(b), subject to the savings clause 24 provisions of the EAJA. 25 26 || Dated: J anuary 26, 2024 SACKETT AND ASSOCIATES 27 28 ° LAW CORP. STIPULATION AND [PROPOSED] ORDER FOR THE AWARD AND PAYMENT OF ATTORNEY Street, Suite 38822 1] FEES PURSUANT TO THE EQUAL ACCESS TO JUSTICE ACT, 28 U.S.C. § 2412(d) 1 By: /s/ HARVEY P. SACKETT 2 HARVEY P. SACKETT Attorney for Plaintiff 3 KIMO C. GOMEZ 4 Dated: January 29, 2024 PHILLIP A. TALBERT 5 United States Attorney 6 By: /s/ELIZABETH LANDGRAF 7 ELIZABETH LANDGRAF Special Assistant United States Attorney 8 Attorney for Defendant [*As authorized by email on 1/26/24] 9 10 ORDER 11 Pursuant to the stipulation, IT IS SOQ ORDERED. 13 14 Dated: January 29, 2024 ~ Ctttt0n— Lane I5 ALLISON CLAIRE 16 UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 KETT Law CORP. STIPULATION AND [PROPOSED] ORDER FOR THE AWARD AND PAYMENT OF ATTORNEY Street, Suite 38822 1] FEES PURSUANT TO THE EQUAL ACCESS TO JUSTICE ACT, 28 U.S.C. § 2412(d)