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

1 Jonathan O. Peña, Esq. 2 CA Bar ID No.: 278044 Peña & Bromberg, PLC 3 2440 Tulare St., Ste. 320 Fresno, CA 93721 4 Telephone: 559-439-9700 Facsimile: 559-439-9723 5 Email: info@jonathanpena.com 6 Attorney for Plaintiff, Kyle Terry 7 8 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA 9 FRESNO DIVISION 10 Kyle Terry, Case No. 1:23-cv-01188-SKO 11 Plaintiff, STIPULATION AND UNOPPOSED MOTION 12 FOR THE AWARD OF ATTORNEY FEES v. PURSUANT TO THE EQUAL ACCESS TO 13 JUSTICE ACT; ORDER Martin O’Malley1, Commissioner of Social 14 Security, 15 Defendant. 16 IT IS HEREBY STIPULATED by and between the parties through their undersigned counsel, 17 subject to the approval of the Court, that Plaintiff be awarded attorney fees and expenses in the amount 18 of FIVE THOUSAND ONE HUNDRED FORTY-SIX DOLLARS AND 93/100 ($5,146.93) under the 19 Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d), and costs in the amount of zero dollars 20 ($0.00) under 28 U.S.C. §1920. This amount represents compensation for all legal services rendered 21 on behalf of Plaintiff by counsel in connection with this civil action, in accordance with 28 U.S.C. §§ 22 1920, 2412(d). 23 After the Court issues an order for EAJA fees to Plaintiff, the government will consider the 24 25 matter of Plaintiff’s assignment of EAJA fees to counsel. Pursuant to Astrue v. Ratliff, 560 U.S. 586, 26 1 Martin O’Malley became the Commissioner of Social Security on December 20, 2023. Pursuant to Rule 25(d) of the 27 Federal Rules of Civil Procedure, Martin O’Malley should be substituted for Kilolo Kijakazi as the 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 1 598, 130 S.Ct. 2521, 177 L.Ed.2d 91 (2010), the ability to honor the assignment will depend on 2 whether the fees are subject to any offset allowed under the United States Department of the 3 Treasury’s Offset Program. After the order for EAJA fees is entered, the government will determine 4 whether they are subject to any offset. 5 Fees shall be made payable to Plaintiff, but if the Department of the Treasury determines that 6 Plaintiff does not owe a federal debt, then the government shall cause the payment of fees, expenses 7 and costs to be made directly to Counsel, pursuant to the assignment executed by Plaintiff. Any 8 payments made shall be delivered and made payable to Plaintiff’s counsel, Jonathan O. Peña. 9 Additionally, any payment of costs under 28 U.S.C. §1920 may be made either by electronic fund 10 transfer (ETF) or by check. 11 This stipulation constitutes a compromise settlement of Plaintiff’s request for EAJA attorney 12 fees, and does not constitute an admission of liability on the part of Defendant under the EAJA or 13 otherwise. Payment of the agreed amount shall constitute a complete release from, and bar to, any 14 and all claims that Plaintiff and/or Counsel including Counsel’s firm may have relating to EAJA 15 attorney fees in connection with this action. 16 This award is without prejudice to the rights of Counsel and/or Counsel’s firm to seek Social 17 Security Act attorney fees under 42 U.S.C. § 406(b), subject to the savings clause provisions of the 18 EAJA. 19 Respectfully submitted, 20 21 Dated: May 7, 2024 /s/ Jonathan O. Peña J ONATHAN O. PEÑA 22 Attorney for Plaintiff 23 24 Dated: May 7, 2024 PHILLIP A. TALBERT United States Attorney 25 MATHEW W. PILE Associate General Counsel 26 Office of Program Litigation Social Security Administration 27 By: _*_James Ki 1 James Ki Special Assistant U.S. Attorney 2 Attorneys for Defendant (*Permission to use electronic signature 3 obtained via email on May 7, 2024). 4 5 ORDER 6 Based upon the parties’ Stipulation and Unopposed Motion for the Award and Payment of 7 Equal Access to Justice Act Fees and Expenses (the “Stipulation”) (Doc. 20), IT IS ORDERED that 8 fees and expenses in the amount of FIVE THOUSAND ONE HUNDRED FORTY-SIX DOLLARS 9 AND 93/100 ($5,146.93) as authorized by the Equal Access to Justice Act (EAJA), 28 U.S.C. § 10 11 2412(d), be awarded subject to the terms of the Stipulation. 12 IT IS SO ORDERED. 13 14 Dated: May 8, 2024 /s/ Sheila K. Oberto . UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27