(SS) (CONSENT) Frits v. Commissioner of Social Security

Opinion

PHILLIP A. TALBERT 1 Acting United States Attorney 2 DEBORAH LEE STACHEL Regional Chief Counsel, Region IX 3 Social Security Administration MARCELO ILLARMO (MABN 670079) 4 Special Assistant United States Attorney 5 160 Spear Street, Suite 800 San Francisco, California 94105 6 Telephone: (510) 970-4822 Facsimile: (415) 744-0134 7 E-Mail: Marcelo.Illarmo@ssa.gov 8 Attorneys for Defendant

9 UNITED STATES DISTRICT COURT

10 EASTERN DISTRICT OF CALIFORNIA 11

12 IRINA FRITS, ) No. 2:19-cv-02371-DB ) 13 Plaintiff, ) STIPULATION AND ORDER FOR THE 14 ) AWARD AND PAYMENT OF v. ) ATTORNEY FEES AND EXPENSES 15 ) PURSUANT TO THE EQUAL ACCESS KILOLO KIJAKAZI, 1 ) TO JUSTICE ACT, 28 U.S.C. § 2412(d), 16 Commissioner of Social Security, ) AND COSTS PURSUANT TO 28 U.S.C. § 17 ) 1920 Defendant. ) 18 ) 19 20 IT IS HEREBY STIPULATED by and between the parties through their undersigned 21 counsel, subject to the approval of the Court, that Plaintiff be awarded attorney fees in the amount 22 of five thousand six hundred dollars ($5,600.00) under the Equal Access to Justice Act (EAJA), 23 28 U.S.C. § 2412(d), and no costs under 28 U.S.C. § 1920. This amount represents compensation 24 for all legal services rendered on behalf of Plaintiff by counsel in connection with this civil action, 25 26 1 Kilolo Kijakazi became the Acting Commissioner of Social Security on July 9, 2021. Pursuant 27 to Rule 25(d) of the Federal Rules of Civil Procedure, Kilolo Kijakazi should be substituted, therefore, for Andrew Saul as the defendant in this suit. No further action need be taken to 28 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 in accordance with 28 U.S.C. §§ 1920; 2412(d). Accordingly, should this Court award fees and 2 expenses under EAJA and costs under 28 U.S.C. § 1920 pursuant to this stipulation, Plaintiff’s 3 motion for attorney fees (ECF 27) would be moot. 4 After the Court issues an order for EAJA fees to Plaintiff, the government will consider 5 the matter of Plaintiff’s assignment of EAJA fees to Jesse Kaplan. Pursuant to Astrue v. 6 Ratliff, 560 U.S. 586, 598, 130 S.Ct. 2521, 177 L.Ed.2d 91 (2010), the ability to honor the 7 assignment will depend on whether the fees are subject to any offset allowed under the United 8 States Department of the Treasury’s Offset Program. After the order for EAJA fees is entered, 9 the government will determine whether they are 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 the 12 payment of fees, expenses and costs to be made directly to Jesse Kaplan, pursuant to the 13 assignment executed by Plaintiff. Any payments made shall be delivered to Jesse Kaplan. 14 This stipulation constitutes a compromise settlement of Plaintiff’s request for EAJA 15 attorney fees, and does not constitute an admission of liability on the part of Defendant under 16 the EAJA or otherwise. Payment of the agreed amount shall constitute a complete release 17 from, and bar to, any and all claims that Plaintiff and/or Jesse Kaplan, including his firm, may 18 have relating to EAJA attorney fees in connection with this action. 19 This award is without prejudice to the rights of Jesse Kaplan to seek Social Security 20 Act attorney fees under 42 U.S.C. § 406(b), subject to the savings clause provisions of the 21 EAJA.

28 1 Respectfully submitted, 2 Dated: December 3, 2021 3 By: /s/ Jesse Kaplan* 4 JESSE KAPLAN 5 * By email authorization on 12/2/21 Attorneys for Plaintiff 6

7 Dated: December 3, 2021 PHILLIP A. TALBERT 8 Acting United States Attorney

9 By: /s/ Marcelo Illarmo 10 MARCELO ILLARMO Special Assistant United States Attorney 11

12 13

14 ORDER 15 Based upon the parties’ Stipulation for the Award and Payment of Equal Access to 16 Justice Act Fees, Costs, and Expenses, IT IS ORDERED that fees and expenses in the amount 17 of $ $5,600.00 as authorized by 28 U.S.C. § 2412, and costs in the amount of $0.00 as authorized 18 by 28 U.S.C. § 1920, be awarded subject to the terms of the Stipulation. Plaintiff’s November 19 18, 2021 motion for attorney’s fees (ECF No. 27) is denied as having been rendered moot. 20

21 DATED: December 3, 2021 /s/ DEBORAH BARNES UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28