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: [email protected] Attorney for Plaintiff, Jose Juan Rivera Alatorre 7

8 9 UNITED STATES DISTRICT COURT 10 FOR THE EASTERN DISTRICT OF CALIFORNIA FRESNO DIVISION 11 12 Jose Juan Rivera Alatorre, Case No. 1:23-cv-01686-SKO

13 Plaintiff, STIPULATION AND UNOPPOSED 14 MOTION FOR THE AWARD AND 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. 24)

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 SIXTY-TWO DOLLARS AND 01/100 ($7,162.01) under the Equal Access to 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,

(g). 1 Justice Act (EAJA),

(d), and costs in the amount of ZERO dollars 2 ($0.00) under

. This amount represents compensation for all legal 3 services rendered on behalf of Plaintiff by counsel in connection with this civil action, 4 in accordance with

, 2412(d). 5 Plaintiff was the prevailing party in this matter and Plaintiff is an individual 6 whose net worth does not exceed $2,000,000 at the time the civil action was filed. The 7 position of the Commissioner was not substantially justified and an award of fees is not 8 unjust. 9 After the Court issues an order for EAJA fees to Plaintiff, the government will 10 consider the matter of Plaintiff’s assignment of EAJA fees to Plaintiff’s attorney. 11 Under Astrue v. Ratliff,

(2010), EAJA fees awarded by this 12 Court belong to the Plaintiff and are subject to offset under the Treasury Offset Program 13 (

(c)(3)(B) (2006)). Any EAJA fees should therefore be awarded to 14 Plaintiff and not to Plaintiff’s attorney. If, after receiving the Court’s EAJA fee order, 15 16 the Commissioner (1) determines that Plaintiff has assigned his right to EAJA fees to 17 his attorney; (2) determines that Plaintiff does not owe a debt that is subject to offset 18 under the Treasury Offset Program, and (3) agrees to waive the requirements of the 19 Anti-Assignment Act, then the EAJA fees will be made payable to Plaintiff’s attorney. 20 However, if there is a debt owed under the Treasury Offset Program, the Commissioner 21 cannot agree to waive the requirements of the Anti-Assignment Act, and the remaining 22 EAJA fees after offset will be paid by a check or electronic fund transfer (EFT) made 23 out to Plaintiff, but delivered to Plaintiff’s attorney. 24 This stipulation constitutes a compromise settlement of Plaintiff’s request for 25 EAJA attorney fees, and does not constitute an admission of liability on the part of 26 Defendant under the EAJA or otherwise. Payment of the agreed amount shall constitute 27 a complete release from, and bar to, any and all claims that Plaintiff and/or Counsel 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

(b), subject to the offset provisions of the EAJA. See

2412(c)(1) (2006). 7 Respectfully submitted, 8 9 Dated: October 17, 2024 /s/ Jonathan O. Peña 10 J ONATHAN O. PEÑA 11 Attorney for Plaintiff

12 Dated: October 17, 2024 PHILLIP A. TALBERT 13 United States Attorney 14 MATHEW W. PILE Associate General Counsel 15 Office of Program Litigation 16 Social Security Administration

17 By: _*_Michael J. Mullen 18 Michael J. Mullen Special Assistant U.S. Attorney 19 Attorneys for Defendant 20 (*Permission to use electronic signature obtained via email on October 17, 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 24), 6 IT IS ORDERED that fees and expenses in the amount of SEVEN THOUSAND 7 8 ONE HUNDRED AND SIXTY-TWO DOLLARS AND 01/100 ($7,162.01) as 9 authorized by the Equal Access to Justice Act (EAJA),

(d), and costs 10 11 in the amount of ZERO dollars ($0.00) under

, be awarded subject to 12 the terms of the Stipulation. 13

14 IT IS SO ORDERED.

15 Dated: October 18, 2024 /s/ Sheila K. Oberto . 16 UNITED STATES MAGISTRATE JUDGE

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