(SS) Rethwisch v. Commissioner of Social Security

PHILLIP A. TALBERT Acting United States Attorney DEBORAH LEE STACHEL Regional Chief Counsel DANIEL P. TALBERT Special Assistant United States Attorney

Social Security Administration 160 Spear Street, Suite 800 San Francisco, CA 94105 Telephone: (510) 970-4805 Facsimile: (415) 744-0134

Attorneys for Defendant

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

FRESNO DIVISION CAROL RETHWISCH, No. 1:19-CV-01039-BAM

Plaintiff,

STIPULATION AND ORDER

v. FOR THE AWARD OF FEES UNDER THE

EQUAL ACCESS TO JUSTICE ACT

KILOLO KIJAKAZI,1 Acting Commissioner of Social Security,

Defendant.

IT IS HEREBY STIPULATED by and between the parties through their undersigned counsel, subject to the approval of the Court, that the previously-filed Motion for Attorney’s Fees, filed June 15, 2021, shall be withdrawn, and that Plaintiff be awarded attorney fees and expenses under the EAJA in the amount of FIVE THOUSAND NINE HUNDRED TWENTY EIGHT DOLLARS AND FORTY-FIVE CENTS ($5,928.45). This amount represents compensation for all legal services rendered on behalf of Plaintiff, to date, by counsel in connection with this civil Kilolo Kijakazi became the Acting Commissioner of Social Security on July 9, 2021. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Kilolo Kijakazi should be substituted, therefore, for Andrew Saul 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 Act, 42

28 U.S.C. § 405(g). action, in accordance with 28 U.S.C. § 2412.

This stipulation constitutes a compromise settlement of Plaintiff’s request for EAJA attorney fees and expenses, and does not constitute an admission of liability on the part of Defendant under the EAJA. Payment of the agreed amount shall constitute a complete release from, and bar to, any and all claims that Plaintiff and/or Plaintiff's counsel may have relating to EAJA attorney fees and expenses in connection with this action.

After the Court issues an order for EAJA fees to Plaintiff, the government will consider the matter of Plaintiff's assignment of EAJA fees to Plaintiff's attorney. Pursuant to Astrue v. Ratliff, 130 S.Ct. 2521, 2252-53 (2010), the ability to honor the assignment will depend on whether the fees are subject to any offset allowed under the United States Department of the Treasury’s Offset Program. After the order for EAJA fees is entered, the government will determine whether they are subject to any offset.

Fees shall be made payable to Plaintiff, but if the Department of the Treasury determines that Plaintiff does not owe a federal debt, then the government shall cause the payment of fees to be made directly to Plaintiff’s counsel, Kelsey Mackenzie Brown, pursuant to the assignment executed by Plaintiff. Any payments made shall be delivered to Plaintiff’s counsel.

This award is without prejudice to the rights of Plaintiff’s counsel to seek Social Security Act attorney fees under 42 U.S.C. § 406, subject to the offset provisions of the EAJA.

Respectfully submitted July 22, 2021.

DATED: July 21, 2021 /s/ Kelsey Mackenzie Brown

KELSEY MCKENZIE BROWN (as authorized by email) Attorney for Plaintiff

PHILLIP A. TALBERT

Acting United States Attorney

DATED: July 21, 2021 By /s/ Daniel P. Talbert

DANIEL P. TALBERT Special Assistant United States Attorney

Attorneys for Defendant

ORDER

PURSUANT TO STIPULATION, IT IS ORDERED that Plaintiff’s motion for attorney’s fees (Doc. 26), filed June 15, 2021, is WITHDRAWN. IT IS FURTHER ORDERED that Plaintiff shall be awarded attorney fees in the amount of FIVE THOUSAND NINE HUNDRED TWENTY EIGHT DOLLARS AND FORTY-FIVE CENTS ($5,928.45) as authorized by 28 U.S.C. § 2412(d), subject to the terms of the above-referenced Stipulation. IT IS SO ORDERED.

Dated: July 26, 2021 /s/ Barbara A. McAuliffe _

UNITED STATES MAGISTRATE JUDGE