(SS) Trujillo 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, Darlene Alice Trujillo 7

8 9 UNITED STATES DISTRICT COURT 10 FOR THE EASTERN DISTRICT OF CALIFORNIA FRESNO DIVISION 11 12 Darlene Alice Trujillo, Case No. 1:21-cv-00273-JLT-GSA

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 NINE THOUSAND 00/100 ($9,000.00) 22 under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d), and costs in the 23 amount of ZERO dollars ($0.00) under 28 U.S.C. §1920. This amount represents 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 compensation for all legal services rendered on behalf of Plaintiff by counsel in 2 connection with this civil action, in accordance with 28 U.S.C. §§ 1920, 2412(d). 3 Plaintiff was the prevailing party in this matter and Plaintiff is an individual 4 whose net worth does not exceed $2,000,000 at the time the civil action was filed. 5 After the Court issues an order for EAJA fees to Plaintiff, the government will 6 consider the matter of Plaintiff’s assignment of EAJA fees to Plaintiff’s attorney. 7 Under Astrue v. Ratliff, 130 S. Ct. 2521, 2528-29 (2010), EAJA fees awarded by this 8 Court belong to the Plaintiff and are subject to offset under the Treasury Offset Program 9 (31 U.S.C. § 3716(c)(3)(B) (2006)). Any EAJA fees should therefore be awarded to 10 Plaintiff and not to Plaintiff’s attorney. If, after receiving the Court’s EAJA fee order, 11 the Commissioner (1) determines that Plaintiff has assigned his right to EAJA fees to 12 his attorney; (2) determines that Plaintiff does not owe a debt that is subject to offset 13 under the Treasury Offset Program, and (3) agrees to waive the requirements of the 14 Anti-Assignment Act, then the EAJA fees will be made payable to Plaintiff’s attorney. 15 16 However, if there is a debt owed under the Treasury Offset Program, the Commissioner 17 cannot agree to waive the requirements of the Anti-Assignment Act, and the remaining 18 EAJA fees after offset will be paid by a check or electronic fund transfer (EFT) made 19 out to Plaintiff, but delivered to Plaintiff’s attorney. 20 This stipulation constitutes a compromise settlement of Plaintiff’s request for 21 EAJA attorney fees, and does not constitute an admission of liability on the part of 22 Defendant under the EAJA or otherwise. Payment of the agreed amount shall constitute 23 a complete release from, and bar to, any and all claims that Plaintiff and/or Counsel 24 including Counsel’s firm may have relating to EAJA attorney fees in connection with 25 this action. 26 The parties further agree that the EAJA award is without prejudice to the right of 27 Plaintiff’s attorney to seek attorney fees pursuant to Social Security Act § 206(b), 42 1 U.S.C. § 406(b), subject to the offset provisions of the EAJA. See 28 U.S.C. § 2 2412(c)(1) (2006). 3 Respectfully submitted, 4

5 Dated: December 5, 2024 /s/ Jonathan O. Peña 6 J ONATHAN O. PEÑA Attorney for Plaintiff 7

8 Dated: December 5, 2024 PHILLIP A. TALBERT 9 United States Attorney MATHEW W. PILE 10 Associate General Counsel 11 Office of Program Litigation Social Security Administration 12

13 By: _*_Marcelo N. Illarmo Marcelo N. Illarmo 14 Special Assistant U.S. Attorney 15 Attorneys for Defendant (*Permission to use electronic signature 16 obtained via email on December 5, 2024). 17 ORDER 18

19 Based upon the parties’ Stipulation for the Award and Payment of Equal Access 20 to Justice Act Fees and Expenses (the “Stipulation”), 21 IT IS ORDERED that fees and expenses in the amount of NINE THOUSAND 22 23 00/100 ($9,000.00) as authorized by the Equal Access to Justice Act (EAJA), 28 U.S.C. 24 § 2412(d), be awarded subject to the terms of the Stipulation. 25

26 IT IS SO ORDERED. 27 Dated: December 9, 2024 /s/ Gary S. Austin 1 UNITED STATES MAGISTRATE JUDGE

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