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

1 || HARVEY P. SACKETT (72488) 2 □□□ □□□ T 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 11 FRESNO DIVISION 12 DWAYNE A. HOLMES, ) Case No.: 1:24-cv-00338-BAM 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 ) 8 Defendant. 19 20 On May 22, 2024 this Court issued an order reversing the final decision of the Defendant, Martin O’Malley, the Commissioner of Social Security (Commissioner), with a 9 remand for a rehearing, 42 U.S.C. § 405(g) (sentence four); judgment was entered. 23 ' Martin Malley became the Commissioner of Social Security on December 20, 2023. 24 || Pursuant to Rule 25(d)(1) of the Federal Rules of Civil Procedure, Martin O’Malley should be 25 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 26 || US.C. § 405(g). 27 28 KETT Law CORP. STIPULATION AND [PROPOSED] ORDER FOR THE AWARD AND PAYMENT OF ATTORNEY Street, Suite 38822 |! FEES PURSUANT TO THE EQUAL ACCESS TO JUSTICE ACT, 28 U.S.C. § 2412(d) 1 In the interest of administrative and judicial economy, the parties have agreed to stipulate 2 || that an award of ONE THOUSAND ONE HUNDRED SEVENTY DOLLARS AND TEN 3 || CENTS ($1,170.10) in attorney fees under the Equal Access to Justice Act (EAJA), 28 U.S.C. 4 lls 2412(d), is 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 || 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 I as signment executed by Plaintiff. Any payments made shall be delivered and made payable to 19 || Counsel. 20 Accordingly, Defendant agrees to pay Plaintiff $1,170.10 in attorney’s fees. Payments 21 may be made by electronic fund transfer (EFT) or by check. 22 All parties whose signature lines appear in this document have consented to its filing. 23 || This award is without prejudice to the rights of Sackett and Associates and/or Harvey P. Sackett 24 || to seek Social Security Act attorney fees under 42 U.S.C. § 406(b), subject to the savings clause 25 provisions of the EAJA. 26 27 28 ° LAW CORP. STIPULATION AND [PROPOSED] ORDER FOR THE AWARD AND PAYMENT OF ATTORNEY Street, Suite 38822 |! FEES PURSUANT TO THE EQUAL ACCESS TO JUSTICE ACT, 28 U.S.C. § 2412(d) 1 || Dated: June 11, 2024 SACKETT AND ASSOCIATES 2 By: /s/ HARVEY P. SACKETT 3 HARVEY P. SACKETT Attorney for Plaintiff 4 DWAYNE A. HOLMES 5 Dated: June 12, 2024 PHILLIP A. TALBERT 6 United States Attorney 7 By: /s/\JUSTIN L. MARTIN g JUSTIN L. MARTIN Special Assistant United States Attorney 9 Attorney for Defendant [*As authorized by email on 6/10/24] 10 11 ORDER 12 Pursuant to the stipulation for the award and payment of attorney fees pursuant to the 13 Equal Access to Justice Act, IT IS ORDERED that attorney fees in the amount of ONE 14 || THOUSAND ONE HUNDRED SEVENTY DOLLARS AND TEN CENTS ($1,170.10) as 15 authorized by the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d), be awarded subject 16 |! to the terms of the stipulation. 17 18 IS ORDERED. 19 Dated: _ June 12, 2024 [s/ Barbara A. MAubiffe 20 UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28 KETT LAW Con. STIPULATION AND [PROPOSED] ORDER FOR THE AWARD AND PAYMENT OF ATTORNEY Street, Suite 38822 |! FEES PURSUANT TO THE EQUAL ACCESS TO JUSTICE ACT, 28 U.S.C. § 2412(d)