(SS) Lemke v. Commissioner of Social Security

• Court: District Court, E.D. California
• Decided: January 13, 2025
• Docket: 2:23-cv-00698
• Status: Unknown

Opinion

PHILLIP A. TALBERT 1 United States Attorney 2 MATHEW W. PILE, WSBN 32245 Associate General Counsel 3 Office of Program Litigation, Office 7 Social Security Administration 4 Oscar Gonzalez de Llano 5 Special Assistant United States Attorney Office of the General Counsel 6 6401 Security Boulevard Baltimore, MD 21235 7 Telephone: (510) 970-4818 Email: Oscar.Gonzalez@ssa.gov 8 Attorneys for Defendant 9 UNITED STATES DISTRICT COURT 10 EASTERN DISTRICT OF CALIFORNIA 11 ) Case No.: 2:23-cv-00698-JDP 12 SHARON LEMKE, ) ) STIPULATION FOR THE AWARD AND 13 Plaintiff, ) PAYMENT OF ATTORNEY FEES AND ) EXPENSES PURSUANT TO THE EQUAL 14 vs. ) ACCESS TO JUSTICE ACT, 28 U.S.C. ) § 2412(d), AND COSTS PURSUANT TO 28 15 COMMISSIONER OF SOCIAL SECURITY, ) U.S.C. § 1920; [PROPOSED] ORDER ) 16 ) Defendant. ) 17 ) 18 Plaintiff seeks an award of attorney fees under the Equal Access to Justice Act (EAJA), 19 28 U.S.C. § 2412 et seq. After Plaintiff filed the Motion for Attorney Fees under EAJA (ECF 20 Doc. 35), the parties engaged in good faith negotiations. Defendant, the Commissioner of Social 21 Security (Commissioner), by their undersigned counsel, and Plaintiff, by their counsel, Robert C. 22 Weems of Weems Law Office, now agree and stipulate as follows: 23 1. Plaintiff was the prevailing party in this matter; 24 2. Plaintiff was an individual whose net worth did not exceed $2,000,000 at the time the civil 25 action was filed; 26 3. The position of the Commissioner was not substantially justified; 27 4. An award of fees is not unjust; 28 5. An award of $13,000 constitutes reasonable attorney fees and expenses in this matter; 1 6. Payment of these amounts shall constitute a complete release from and bar to any and all 2 claims Plaintiff may have relating to EAJA fees in connection with this action. The 3 parties further agree that the EAJA award is without prejudice to the right of Plaintiff’s 4 attorney to seek attorney fees pursuant to Social Security Act § 206(b), 42 U.S.C. § 5 406(b), subject to the offset provisions of the EAJA. See 28 U.S.C. § 2412(c)(1) (2006). 6 7. Under Astrue v. Ratliff, 130 S. Ct. 2521, 2528-29 (2010), EAJA fees awarded by this 7 Court belong to the Plaintiff and are subject to offset under the Treasury Offset Program 8 (31 U.S.C. § 3716(c)(3)(B) (2006)). Any EAJA fees should therefore be awarded to 9 Plaintiff and not to Plaintiff’ s attorney. If, after receiving the Court’ s EAJA fee order, 10 the Commissioner (1) determines that Plaintiff has assigned her right to EAJA fees to her 11 attorney; (2) determines that Plaintiff does not owe a debt that is subject to offset under 12 the Treasury Offset Program, and (3) agrees to waive the requirements of the Anti- 13 Assignment Act, then the EAJA fees will be made payable to Plaintiff’ s attorney. 14 However, if there is a debt owed under the Treasury Offset Program, the Commissioner 15 cannot agree to waive the requirements of the Anti-Assignment Act, and the remaining 16 EAJA fees after offset will be paid by a check or electronic fund transfer (EFT) made out 17 to Plaintiff but delivered to Plaintiff’ s attorney. 18 Respectfully submitted, 19 20 Date: January 10, 2025 /s/ Robert Weems * Robert Weems 21 Weems Law Offices (as authorized by email) 22 Attorney for Plaintiff 23 PHILLIP A. TALBERT 24 United States Attorney

25 Date: January 10, 2025 s/ Oscar Gonzalez de Llano 26 OSCAR GONZALEZ DE LLANO Special Assistant United States Attorney 27 Social Security Administration 28 Attorney for Defendant 1 ORDER 2 For the reasons set forth in the parties’ Stipulation for the Award and Payment of 3 || Attorney Fees and Expenses Pursuant to the Equal Access to Justice Act (EAJA), 28 U.S.C. 8 4 || 2412(d), and good cause shown, IT IS HEREBY ORDERED AS FOLLOWS: 5 1. Plaintiff is here by awarded $13,000 in fees and expenses under the EAJA. Under 6 Astrue v. Ratliff, 130 S. Ct. 2521, 2528-29 (2010), EAJA fees awarded by this Court 7 belong to the Plaintiff and are subject to offset under the Treasury Offset Program 8 (31 U.S.C. § 3716(c)(3)(B) (2006)). Any EAJA fees should therefore be awarded to 9 Plaintiff and not to Plaintiff s attorney. If, after receiving the Court’ s EAJA fee 10 order, the Commissioner (1) determines that Plaintiff has assigned her right to EAJA 11 fees to her attorney; (2) determines that Plaintiff does not owe a debt that is subject to 12 offset under the Treasury Offset Program, and (3) agrees to waive the requirements of 13 the Anti-Assignment Act, then the EAJA fees will be made payable to Plaintiff? s 14 attorney. However, if there is a debt owed under the Treasury Offset Program, the 15 Commissioner cannot agree to waive the requirements of the Anti-Assignment Act, 16 and the remaining EAJA fees after offset will be paid by a check or electronic fund 17 transfer (EFT) made out to Plaintiff but delivered to Plaintiff s attorney. 18 2. Plaintiff's motion for attorney fees, ECF No. 35, is denied as moot and the hearing 19 scheduled for February 13, 2025, is vacated. 20 IT IS SO ORDERED. 22 ( _ 73 Dated: _ January 10, 2025 q-—— JEREMY D, PETERSON 24 UNITED STATES MAGISTRATE JUDGE 25 26 27 28

EAJA Stip.; No. 2:23-cv-00698-JDP