(SS) Averill-Marcogliese v. Commissioner of Social Security

Jonathan O. Peña, Esq.

2 CA Bar ID No.: 278044 Peña & Bromberg, PLC 2440 Tulare St., Ste. 320 Fresno, CA 93721 Telephone: 559-439-9700 Facsimile: 559-439-9723 Email: [email protected] Attorney for Plaintiff, Samantha Regina Averill-Marcogliese UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 FRESNO DIVISION Samantha Regina Averill- Case No. 1:21-cv-00277-SKO (SS) Marcogliese, STIPULATION FOR THE AWARD 13 Plaintiff, AND PAYMENT OF ATTORNEY 14 FEES AND EXPENSES PURSUANT v. TO THE EQUAL ACCESS TO 15 JUSTICE ACT; ORDER RE: Kilolo Kijakazi, Acting STIPULATION AND DENYING Commissioner of Social Security, MOTION FOR ATTORNEY’S FEES 17 AS MOOT 18 Defendant. (Docs. 19 & 21) 20 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 FIVE THOUSAND ONE HUNDRED DOLLARS AND 00/100 ($5,100.00) under the Equal Access to Justice Act (EAJA), 28 24 U.S.C. § 2412(d), and costs in the amount of FOUR HUNDRED AND TWO AND 00/100 dollars ($402.00) under 28 U.S.C. §1920. 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. §§ 1920, 2412(d).

1 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 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 and made payable to Plaintiff’s counsel, Jonathan O. Peña.

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.

The Parties request that Plaintiff’s Motion for Attorney Fees (Doc. No. 19) be withdrawn.

1 Respectfully submitted, Dated: September 21, 2023 /s/ Jonathan O. Peña 3 J ONATHAN O. PEÑA 4 Attorney for Plaintiff Dated: September 21, 2023 PHILLIP A. TALBERT 6 United States Attorney 7 MATHEW W. PILE Associate General Counsel 8 Office of Program Litigation 9 Social Security Administration 10 By: _*_Caspar I. Chan 11 Caspar I. Chan Special Assistant U.S. Attorney Attorneys for Defendant 13 (*Permission to use electronic signature obtained via email on September 21, 2023).

15 ORDER 16 Based upon the parties’ foregoing Stipulation for the Award and Payment of Equal Access to Justice Act Fees and Expenses (the “Stipulation”) (Doc. 21) IT IS ORDERED that fees and expenses in the amount of FIVE THOUSAND ONE HUNDRED DOLLARS AND 00/100 ($5,100.00) as authorized by the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d) and costs in the amount of FOUR HUNDRED AND TWO AND 00/100 dollars ($402.00) under 28 U.S.C. §1920, be awarded subject to the terms of the Stipulation.

23 IT IS FURTHER ORDERED that Plaintiff’s motion for attorney’s fees (Doc. 19) is DENIED as MOOT.

IT IS SO ORDERED.

Dated: September 21, 2023 /s/ Sheila K. Oberto .

1 UNITED STATES MAGISTRATE JUDGE