(SS) Dominguez v. Commissioner of Social Security

Opinion

1 Jonathan O. Peña, Esq. 2 CA Bar ID No.: 278044 Peña & Bromberg, PLC 3 3467 W. Shaw Ave., Ste 100 4 Fresno, CA 93711 Telephone: 559-439-9700 5 Facsimile: 559-439-9723 6 Email: info@jonathanpena.com Attorney for Plaintiff, Jennifer Michelle Dominguez 7 8 9 UNITED STATES DISTRICT COURT 10 FOR THE EASTERN DISTRICT OF CALIFORNIA FRESNO DIVISION 11 12 Jennifer Michelle Dominguez, Case No. 1:23-cv-01785-KES-GSA 13 Plaintiff, STIPULATION FOR THE AWARD 14 AND PAYMENT OF ATTORNEY v. FEES AND EXPENSES PURSUANT 15 TO THE EQUAL ACCESS TO 16 Carolyn Colvin1, ACTING JUSTICE ACT; ORDER COMMISIONER OF SOCIAL 17 SECURITY, 18 Defendant. 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 NINE THOUSAND TWO HUNDRED 22 FIFTY DOLLARS AND 00/100 ($9,250.00) under the Equal Access to Justice Act 23 (EAJA), 28 U.S.C. § 2412(d), and costs in the amount of FOUR HUNDRED AND 24 25 1 Carolyn Colvin became the Commissioner of Social Security on November 30, 26 2024. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Carolyn Colvin should be substituted for Martin O’Malley as the defendant in this suit. No further 27 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 FIVE DOLLARS AND 00/100 ($405.00) under 28 U.S.C. §1920. This amount 2 represents compensation for all legal services rendered on behalf of Plaintiff by counsel 3 in connection with this civil action, in accordance with 28 U.S.C. §§ 1920, 2412(d). 4 Plaintiff was the prevailing party in this matter and Plaintiff is an individual 5 whose net worth does not exceed $2,000,000 at the time the civil action was filed. 6 After the Court issues an order for EAJA fees to Plaintiff, the government will 7 consider the matter of Plaintiff’s assignment of EAJA fees to Plaintiff’s attorney. 8 Under Astrue v. Ratliff, 130 S. Ct. 2521, 2528-29 (2010), EAJA fees awarded by this 9 Court belong to the Plaintiff and are subject to offset under the Treasury Offset Program 10 (31 U.S.C. § 3716(c)(3)(B) (2006)). Any EAJA fees should therefore be awarded to 11 Plaintiff and not to Plaintiff’s attorney. If, after receiving the Court’s EAJA fee order, 12 the Commissioner (1) determines that Plaintiff has assigned his right to EAJA fees to 13 his attorney; (2) determines that Plaintiff does not owe a debt that is subject to offset 14 under the Treasury Offset Program, and (3) agrees to waive the requirements of the 15 16 Anti-Assignment Act, then the EAJA fees will be made payable to Plaintiff’s attorney. 17 However, if there is a debt owed under the Treasury Offset Program, the Commissioner 18 cannot agree to waive the requirements of the Anti-Assignment Act, and the remaining 19 EAJA fees after offset will be paid by a check or electronic fund transfer (EFT) made 20 out to Plaintiff, but delivered to Plaintiff’s attorney. 21 This stipulation constitutes a compromise settlement of Plaintiff’s request for 22 EAJA attorney fees, and does not constitute an admission of liability on the part of 23 Defendant under the EAJA or otherwise. Payment of the agreed amount shall constitute 24 a complete release from, and bar to, any and all claims that Plaintiff and/or Counsel 25 including Counsel’s firm may have relating to EAJA attorney fees in connection with 26 this action. 27 1 The parties further agree that the EAJA award is without prejudice to the right of 2 Plaintiff’s attorney to seek attorney fees pursuant to Social Security Act § 206(b), 42 3 U.S.C. § 406(b), subject to the offset provisions of the EAJA. See 28 U.S.C. § 4 2412(c)(1) (2006). 5 Respectfully submitted, 6

7 Dated: January 2, 2025 /s/ Jonathan O. Peña 8 JONATHAN O. PEÑA Attorney for Plaintiff 9

10 Dated: January 2, 2025 PHILLIP A. TALBERT 11 United States Attorney MATHEW W. PILE 12 Associate General Counsel 13 Office of Program Litigation Social Security Administration 14

15 By: _*_Marcelo N. Illarmo Marcelo N. Illarmo 16 Special Assistant U.S. Attorney 17 Attorneys for Defendant (*Permission to use electronic signature 18 obtained via email on January 2, 2025). 19

21 22 23 24 25 26 27 1 ORDER 2 Based upon the parties’ Stipulation for the Award and Payment of Equal Access 3 4 to Justice Act Fees and Expenses (the “Stipulation”), 5 IT IS ORDERED that fees and expenses in the amount of NINE THOUSAND 6 TWO HUNDRED FIFTY DOLLARS AND 00/100 ($9,250.00) as authorized by the 7 8 Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d) and costs in the amount of 9 FOUR HUNDRED AND FIVE DOLLARS AND 00/100 ($405.00) under 28 U.S.C. 10 11 §1920, be awarded subject to the terms of the Stipulation. 12 IT IS SO ORDERED.

13 Dated: January 3, 2025 /s/ Gary S. Austin_______________ 14 UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27