(SS) Munoz 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, Catarina Munoz 7

8 FRESNO DIVISION 11 12 Catarina Munoz, Case No. 1:24-cv-00331-SKO

13 Plaintiff, STIPULATION AND UNOPPOSED v. PAYMENT OF ATTORNEY FEES 15 AND EXPENSES PURSUANT TO THE 16 Martin O’Malley1, Commissioner of EQUAL ACCESS TO JUSTICE ACT; Social Security, ORDER 17 18 Defendant. (Doc. 17)

19 20 IT IS HEREBY STIPULATED by and between the parties through their 21 undersigned counsel, subject to the approval of the Court, that Plaintiff be awarded 22 attorney fees and expenses in the amount of SEVEN THOUSAND ONE HUNDRED 23 AND FIFTY DOLLARS AND 00/100 ($7,150.00) under the Equal Access to Justice 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 Act (EAJA), 28 U.S.C. § 2412(d), and costs in the amount of ZERO dollars ($0.00) 2 under 28 U.S.C. §1920. This amount represents compensation for all legal services 3 rendered on behalf of Plaintiff by counsel in connection with this civil action, in 4 accordance with 28 U.S.C. §§ 1920, 2412(d). 5 Plaintiff was the prevailing party in this matter and Plaintiff is 6 an individual whose net worth does not exceed $2,000,000 at the time the civil action 7 was filed. 8 After the Court issues an order for EAJA fees to Plaintiff, the government will 9 consider the matter of Plaintiff’s assignment of EAJA fees to Plaintiff’s attorney. 10 Under Astrue v. Ratliff, 130 S. Ct. 2521, 2528-29 (2010), EAJA fees awarded by this 11 Court belong to the Plaintiff and are subject to offset under the Treasury Offset Program 12 (31 U.S.C. § 3716(c)(3)(B) (2006)). Any EAJA fees should therefore be awarded to 13 Plaintiff and not to Plaintiff’s attorney. If, after receiving the Court’s EAJA fee order, 14 the Commissioner (1) determines that Plaintiff has assigned his right to EAJA fees to 15 16 his attorney; (2) determines that Plaintiff does not owe a debt that is subject to offset 17 under the Treasury Offset Program, and (3) agrees to waive the requirements of the 18 Anti-Assignment Act, then the EAJA fees will be made payable to Plaintiff’s attorney. 19 However, if there is a debt owed under the Treasury Offset Program, the Commissioner 20 cannot agree to waive the requirements of the Anti-Assignment Act, and the remaining 21 EAJA fees after offset will be paid by a check or electronic fund transfer (EFT) made 22 out to Plaintiff, but delivered to Plaintiff’s attorney. 23 This stipulation constitutes a compromise settlement of Plaintiff’s request for 24 EAJA attorney fees, and does not constitute an admission of liability on the part of 25 Defendant under the EAJA or otherwise. Payment of the agreed amount shall constitute 26 a complete release from, and bar to, any and all claims that Plaintiff and/or Counsel 27 1 including Counsel’s firm may have relating to EAJA attorney fees in connection with 2 this action. 3 The parties further agree that the EAJA award is without prejudice to the right of 4 Plaintiff’s attorney to seek attorney fees pursuant to Social Security Act § 206(b), 42 5 U.S.C. § 406(b), subject to the offset provisions of the EAJA. See 28 U.S.C. § 6 2412(c)(1) (2006). 7 Respectfully submitted, 8 9 Dated: October 23, 2024 /s/ Jonathan O. Peña 10 J ONATHAN O. PEÑA 11 Attorney for Plaintiff

12 Dated: October 23, 2024 PHILLIP A. TALBERT 13 United States Attorney Associate General Counsel 15 Office of Program Litigation 16 Social Security Administration

17 By: _*_Marcelo N. Illarmo 18 Marcelo N. Illarmo Special Assistant U.S. Attorney 19 Attorneys for Defendant 20 (*Permission to use electronic signature obtained via email on October 23, 2024). 21

22 23 24 25 26 27 1 ORDER 2 Based upon the parties’ Stipulation and Unopposed Motion for the Award and 3 4 Payment of Equal Access to Justice Act Fees and Expenses (the “Stipulation”) (Doc. 5 17), 6 IT IS ORDERED that fees and expenses in the amount of SEVEN THOUSAND 7 8 ONE HUNDRED AND FIFTY DOLLARS AND 00/100 ($7,150.00) as authorized by 9 the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d) and costs in the amount of 10 11 ZERO dollars under 28 U.S.C. §1920, be awarded subject to the terms of the 12 Stipulation. 13

16 Dated: October 24, 2024 /s/ Sheila K. Oberto . 17 UNITED STATES MAGISTRATE JUDGE

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