(SS) Fisher v. Commissioner of Social Security

Opinion

1 Jonathan O. Peña, Esq. 2 CA Bar ID No.: 278044 Peña & Bromberg, PLC 3 2440 Tulare St., Ste. 320 4 Fresno, CA 93721 Telephone: 559-439-9700 5 Facsimile: 559-439-9723 6 Email: info@jonathanpena.com Attorney for Plaintiff, Kevin Lee Fisher 7

8 9 UNITED STATES DISTRICT COURT 10 FOR THE EASTERN DISTRICT OF CALIFORNIA FRESNO DIVISION 11 12 Kevin Lee Fisher, Case No. 2:22-cv-01615-DMC

13 Plaintiff, STIPULATION FOR THE AWARD 14 AND PAYMENT OF ATTORNEY v. FEES AND EXPENSES PURSUANT 15 TO THE EQUAL ACCESS TO 16 Martin O’Malley1, Commissioner of JUSTICE ACT; ORDER Social Security, 17 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 SIX THOUSAND SEVEN HUNDRED 22 SIXTY-EIGHT DOLLARS AND 86/100 ($6,768.86) under the Equal Access to Justice 23 Act (EAJA), 28 U.S.C. § 2412(d), and costs in the amount of ZERO dollars ($0.00) 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 under 28 U.S.C. §1920. This amount represents compensation for all legal services 2 rendered on behalf of Plaintiff by counsel in connection with this civil action, in 3 accordance with 28 U.S.C. §§ 1920, 2412(d). 4 After the Court issues an order for EAJA fees to Plaintiff, the government will 5 consider the matter of Plaintiff’s assignment of EAJA fees to counsel. Pursuant to 6 Astrue v. Ratliff, 560 U.S. 586, 598, 130 S.Ct. 2521, 177 L.Ed.2d 91 (2010), the ability 7 to honor the assignment will depend on whether the fees are subject to any offset 8 allowed under the United States Department of the Treasury’s Offset Program. After 9 the order for EAJA fees is entered, the government will determine whether they are 10 subject to any offset. 11 Fees shall be made payable to Plaintiff, but if the Department of the Treasury 12 determines that Plaintiff does not owe a federal debt, then the government shall cause 13 the payment of fees, expenses and costs to be made directly to Counsel, pursuant to 14 the assignment executed by Plaintiff. Any payments made shall be delivered and 15 made payable to Plaintiff’s counsel, Jonathan O. Peña. Additionally, any payment of 16 costs under 28 U.S.C. §1920 may be made either by electronic fund transfer (ETF) or 17 by check. 18 This stipulation constitutes a compromise settlement of Plaintiff’s request for 19 EAJA attorney fees, and does not constitute an admission of liability on the part of 20 Defendant under the EAJA or otherwise. Payment of the agreed amount shall 21 constitute a complete release from, and bar to, any and all claims that Plaintiff and/or 22 Counsel including Counsel’s firm may have relating to EAJA attorney fees in 23 connection with this action. 24 This award is without prejudice to the rights of Counsel and/or Counsel’s firm 25 to seek Social Security Act attorney fees under 42 U.S.C. § 406(b), subject to the 26 savings clause provisions of the EAJA. 27 1 Respectfully submitted, 2

3 Dated: March 15, 2024 /s/ Jonathan O. Peña 4 J ONATHAN O. PEÑA Attorney for Plaintiff 5

6 Dated: March 15, 2024 PHILLIP A. TALBERT 7 United States Attorney MATHEW W. PILE 8 Associate General Counsel 9 Office of Program Litigation Social Security Administration 10 11 By: _*_Timothy A. Razel Timothy A. Razel 12 Special Assistant U.S. Attorney 13 Attorneys for Defendant (*Permission to use electronic signature 14 obtained via email on March 15, 2024). 15 16

17 18 19 20 21 22 23 24 25 26 27 1 ORDER 2 3 Based upon the parties’ Stipulation for the Award and Payment of Equal Access 4 || to Justice Act Fees and Expenses (the “‘Stipulation’”), 5 IT IS ORDERED that fees and expenses in the amount of SIX THOUSAND 6 7 SEVEN HUNDRED SIXTY-EIGHT DOLLARS AND 86/100 ($6,768.86) as 8 || authorized by the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d), and costs 9 in the amount of ZERO dollars ($0.00) under 28 U.S.C. §1920, be awarded subject to 10 11 || the terms of the Stipulation. The Clerk of the Court is directed to terminate ECF No. 24 I2 pending motion. 13 14 IT IS SO ORDERED.

16 DENNIS M. COTA 7 UNITED STATES MAGISTRATE JUDGE

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