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

1 Jonathan O. Peña, Esq. CA Bar ID No.: 278044 2 Peña & Bromberg, PLC 3467 W. Shaw Ave., Ste 100 3 Fresno, CA 93711 4 Telephone: 559-439-9700 Facsimile: 559-439-9723 5 Email: info@jonathanpena.com 6 Attorney for Plaintiff, Elana Dimitria Mendyuk 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 FRESNO DIVISION 11 Elana Dimitria Mendyuk, Case No. 1:24-cv-00459-SKO 12 Plaintiff, STIPULATION AND UNOPPOSED 13 MOTION FOR THE AWARD AND 14 v. PAYMENT OF ATTORNEY FEES AND EXPENSES PURSUANT TO THE 15 Martin O’Malley1, Commissioner of EQUAL ACCESS TO JUSTICE ACT; 16 Social Security, ORDER 17 Defendant. (Doc. 12) 18 19 IT IS HEREBY STIPULATED by and between the parties through their 20 undersigned counsel, subject to the approval of the Court, that Plaintiff be awarded 21 attorney fees and expenses in the amount of EIGHT HUNDRED FIFTY-SIX AND 22 17/100 ($856.17) under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d), 23 and costs in the amount of ZERO dollars ($0) under 28 U.S.C. §1920. This amount 24 25 1 Martin O’Malley became the Commissioner of Social Security on December 26 20, 2023. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Martin O’Malley should be substituted for Kilolo Kijakazi as the defendant in this suit. No 27 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 U.S.C. § 405(g). 1 represents compensation for all legal services rendered on behalf of Plaintiff by counsel 2 in connection with this civil action, in accordance with 28 U.S.C. §§ 1920, 2412(d). 3 After the Court issues an order for EAJA fees to Plaintiff, the government will 4 consider the matter of Plaintiff’s assignment of EAJA fees to counsel. Pursuant to 5 Astrue v. Ratliff, 560 U.S. 586, 598, 130 S.Ct. 2521, 177 L.Ed.2d 91 (2010), the ability 6 to honor the assignment will depend on whether the fees are subject to any offset 7 allowed under the United States Department of the Treasury’s Offset Program. After 8 the order for EAJA fees is entered, the government will determine whether they are 9 subject to any offset. 10 Fees shall be made payable to Plaintiff, but if the Department of the Treasury 11 determines that Plaintiff does not owe a federal debt, then the government shall cause 12 the payment of fees, expenses and costs to be made directly to Counsel, pursuant to 13 the assignment executed by Plaintiff. Any payments made shall be delivered and 14 made payable to Plaintiff’s counsel, Jonathan O. Peña. Additionally, any payment of 15 costs under 28 U.S.C. §1920 may be made either by electronic fund transfer (EFT) or 16 by check. 17 This stipulation constitutes a compromise settlement of Plaintiff’s request for 18 EAJA attorney fees, and does not constitute an admission of liability on the part of 19 Defendant under the EAJA or otherwise. Payment of the agreed amount shall 20 constitute a complete release from, and bar to, any and all claims that Plaintiff and/or 21 Counsel including Counsel’s firm may have relating to EAJA attorney fees in 22 connection with this action. 23 This award is without prejudice to the rights of Counsel and/or Counsel’s firm 24 to seek Social Security Act attorney fees under 42 U.S.C. § 406(b), subject to the 25 savings clause provisions of the EAJA. 26 Respectfully submitted, 27 1 Dated: September 5, 2024 /s/ Jonathan O. Peña 2 J ONATHAN O. PEÑA Attorney for Plaintiff 3 4 Dated: September 5, 2024 PHILLIP A. TALBERT 5 United States Attorney MATHEW W. PILE 6 Associate General Counsel 7 Office of Program Litigation 8 Social Security Administration 9 By: _*_Justin Lane Martin 10 Justin Lane Martin Special Assistant U.S. Attorney 11 Attorneys for Defendant 12 (*Permission to use electronic signature obtained via email on September 5, 2024). 13 14 ORDER 15 Based upon the parties’ Stipulation and Unopposed Motion for the Award and 16 Payment of Equal Access to Justice Act Fees and Expenses (the “Stipulation”) (Doc. 17 12), 18 19 IT IS ORDERED that fees and expenses in the amount of EIGHT HUNDRED 20 FIFTY-SIX DOLLARS AND 17/100 ($856.17) as authorized by the Equal Access to 21 Justice Act (EAJA), 28 U.S.C. § 2412(d), be awarded subject to the terms of the 22 23 Stipulation. 24 25 IT IS SO ORDERED. 26 Dated: September 9, 2024 /s/ Sheila K. Oberto . 27 UNITED STATES MAGISTRATE JUDGE