(SS) Swinhart v. Commissioner of Social Security

PHILLIP A. TALBERT Acting United States Attorney DEBORAH L. STACHEL Regional Chief Counsel, Region IX SATHYA OUM Special Assistant U.S. Attorney

Social Security Administration 160 Spear Street, Suite 800 San Francisco, CA 94105 Telephone: (510) 970-4846 Facsimile: (415) 744-0134 Email: [email protected]

Attorneys for Defendant

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

SACRAMENTO DIVISION GARY RAYMOND SWINHART, Case No. 2:20-cv-1955-KJM-CKD

Plaintiff, STIPULATION FOR THE AWARD AND

PAYMENT OF ATTORNEY FEES AND

v. EXPENSES PURSUANT TO THE EQUAL

ACCESS TO JUSTICE ACT; ORDER

KILOLO KIJAKAZI1, Acting Commissioner of Social Security,

Defendant.

1 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 U.S.C. § 405(g).

IT IS HEREBY STIPULATED by and between the parties through their undersigned counsel, subject to the approval of the Court, that Plaintiff be awarded attorney fees and expenses in the amount of $ 1,531.80, plus $225.00 in costs, under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d). This amount represents compensation for all legal services rendered on behalf of Plaintiff by counsel in connection with this civil action, in accordance with 28 U.S.C. § 2412(d).

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 counsel. Pursuant to Astrue v. Ratliff, 560

9 U.S. 586, 598, 130 S.Ct. 2521, 177 L.Ed.2d 91 (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, expenses and costs to be made directly to Counsel, pursuant to the assignment executed by Plaintiff. Any payments made shall be delivered to Plaintiff’s counsel, Ashish A. Agrawal.

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

This award is without prejudice to the rights of Counsel and/or Counsel’s firm to seek Social Security Act attorney fees under 42 U.S.C. § 406(b), subject to the savings clause provisions of the EAJA.

Respectfully submitted,

Dated: September 19, 2021 /s/ Ashish A. Agrawal

ASHISH A. AGRAWAL Attorney for Plaintiff

(authorized by email on September 19,

2021)

Dated: September 19, 2021 PHILLIP A. TALBERT

Acting United States Attorney

DEBORAH LEE STACHEL

Regional Chief Counsel, Region IX Social Security Administration

By: Sathya Oum SATHYA OUM

Special Assistant U.S. Attorney Attorneys for Defendant ORDER

Based upon the parties’ Stipulation for the Award and Payment of Equal Access to Justice Act Fees and Expenses, IT IS ORDERED that:

1. Plaintiff's motion for attorney’s fees (ECF No. 18) is denied as moot; and 59 2. Costs in the amount of $225.00 and fees in the amount of $1,531.80 as authorized 73 by 28 U.S.C. § 2412 be awarded subject to the terms of the Stipulation.

. o> ") iy □ } ¥ Dated: September 21, 2021 (ard jf le lg. a

CAROLYN K. DELANEY

UNITED STATES MAGISTRATE JUDGE