(SS) Macias 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 Fresno, CA 93721 4 Telephone: 559-439-9700 Facsimile: 559-439-9723 5 Email: info@jonathanpena.com 6 Attorney for Plaintiff, Rafael Macias

7 FOR THE EASTERN DISTRICT OF CALIFORNIA

10 Rafael Macias, Case No. 1:23-cv-01034-SKO 11 Plaintiff, STIPULATION AND UNOPPOSED MOTION v. ATTORNEYS FEES PURSUANT TO THE 13 EQUAL ACCESS TO JUSTICE ACT (28 U.S.C. Martin O’Malley1, Commissioner of Social §2412(d)) 14 Security, 15 (Doc. 20) Defendant. 16

17 IT IS HEREBY STIPULATED by and between the parties through their undersigned counsel, 18 subject to the approval of the Court, that Plaintiff be awarded attorney fees and expenses in the amount 19 of SIX THOUSAND ONE-HUNDRED NINETY DOLLARS and 89/100 ($6,190.89) under the Equal 20 Access to Justice Act (EAJA), 28 U.S.C. § 2412(d), and costs in the amount of zero dollars ($0.00) 21 under 28 U.S.C. §1920. This amount represents compensation for all legal services rendered on behalf 22 of Plaintiff by counsel in connection with this civil action, in accordance with 28 U.S.C. §§ 1920, 23 2412(d). 24 25 26 1 Martin O’Malley became the Commissioner of Social Security on December 20, 2023. Pursuant to Rule 25(d) of the 27 Federal Rules of Civil Procedure, Martin O’Malley should be substituted for Kilolo Kijakazi as the defendant in this suit. No further action need be taken to continue this suit by reason of the last sentence of section 205(g) of the Social Security 1 After the Court issues an order for EAJA fees to Plaintiff, the government will consider the 2 matter of Plaintiff’s assignment of EAJA fees to counsel. Pursuant to Astrue v. Ratliff, 560 U.S. 586, 3 598, 130 S.Ct. 2521, 177 L.Ed.2d 91 (2010), the ability to honor the assignment will depend on 4 whether the fees are subject to any offset allowed under the United States Department of the 5 Treasury’s Offset Program. After the order for EAJA fees is entered, the government will determine 6 whether they are subject to any offset. 7 Fees shall be made payable to Plaintiff, but if the Department of the Treasury determines that 8 Plaintiff does not owe a federal debt, then the government shall cause the payment of fees, expenses 9 and costs to be made directly to Counsel, pursuant to the assignment executed by Plaintiff. Any 10 payments made shall be delivered and made payable to Plaintiff’s counsel, Jonathan O. Peña. 11 Additionally, any payment of costs under 28 U.S.C. §1920 may be made either by electronic fund 12 transfer (ETF) or by check. 13 This stipulation constitutes a compromise settlement of Plaintiff’s request for EAJA attorney 14 fees, and does not constitute an admission of liability on the part of Defendant under the EAJA or 15 otherwise. Payment of the agreed amount shall constitute a complete release from, and bar to, any 16 and all claims that Plaintiff and/or Counsel including Counsel’s firm may have relating to EAJA 17 attorney fees in connection with this action. 18 This award is without prejudice to the rights of Counsel and/or Counsel’s firm to seek Social 19 Security Act attorney fees under 42 U.S.C. § 406(b), subject to the savings clause provisions of the 20 EAJA. 21 Respectfully submitted, 22

23 Dated: March 21, 2024 /s/ Jonathan O. Peña 24 J ONATHAN O. PEÑA Attorney for Plaintiff 25

26 Dated: March 21, 2024 PHILLIP A. TALBERT United States Attorney Associate General Counsel 1 Office of Program Litigation Social Security Administration 2 By: _*_Michael Marriott 3 Michael Marriott Special Assistant U.S. Attorney 4 Attorneys for Defendant (*Permission to use electronic signature 5 obtained via email on March 21, 2024 ). 6 7

9 Based upon the parties’ Stipulation for the Award and Payment of Equal Access to Justice Act 10 Fees and Expenses (the “Stipulation”) (Doc. 20), IT IS ORDERED that fees and expenses in the 11 amount of SIX THOUSAND ONE-HUNDRED NINETY DOLLARS and 89/100 ($6,190.89) as 12 authorized by the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d), be awarded subject to the 13 terms of the Stipulation. 14 15

17 Dated: March 22, 2024 /s/ Sheila K. Oberto . 18 UNITED STATES MAGISTRATE JUDGE

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