(SS) Sandoval Montano v. Commissioner of Social Security

Jonathan O. Peña, Esq.

2 CA Bar ID No.: 278044 Peña & Bromberg, PLC 3467 W. Shaw Ave., Ste 100 Fresno, CA 93711 Telephone: 559-439-9700 Facsimile: 559-439-9723 Email: [email protected] Attorney for Plaintiff, Patricia Montano 9 UNITED STATES DISTRICT COURT 10 FOR THE EASTERN DISTRICT OF CALIFORNIA FRESNO DIVISION PATRICIA MONTANO, Case No. 2:24-cv-02032-JDP 13 Plaintiff, STIPULATION FOR THE AWARD 14 AND PAYMENT OF ATTORNEY v. FEES AND EXPENSES PURSUANT 15 TO THE EQUAL ACCESS TO CAROLYN COLVIN1, ACTING JUSTICE ACT; |PROPOSED| ORDER 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 Plaintiff be awarded attorney fees and expenses in the amount of NINE HUNDRED SEVENTY-EIGHT 48/100 ($978.48) under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d), and costs in the amount of FOUR HUNDRED AND FIVE dollars ($ 405.00) under 28 Carolyn Colvin became the Acting Commissioner of Social Security on November 30, 2024. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Carolyn Colvin should be substituted for Martin O’Malley 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). 1 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 3 U.S.C. §§ 1920, 2412(d).

4 Plaintiff was the prevailing party in this matter and Plaintiff is an individual whose net worth does not exceed $2,000,000 at the time the civil action was filed. The position of the Commissioner was not substantially justified and an award of fees is not unjust.

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.

Under Astrue v. Ratliff, 130 S. Ct. 2521, 2528-29 (2010), EAJA fees awarded by this Court belong to the Plaintiff and are subject to offset under the Treasury Offset Program (31 U.S.C. § 3716(c)(3)(B) (2006)). Any EAJA fees should therefore be awarded to Plaintiff and not to Plaintiff’s attorney. If, after receiving the Court’s EAJA fee order, the Commissioner (1) determines that Plaintiff has assigned his right to EAJA fees to his attorney; (2) determines that Plaintiff does not owe a debt that is subject to offset under the Treasury Offset Program, and (3) agrees to waive the requirements of the Anti-Assignment Act, then the EAJA fees will be made payable to Plaintiff’s attorney.

19 However, if there is a debt owed under the Treasury Offset Program, the Commissioner cannot agree to waive the requirements of the Anti-Assignment Act, and the remaining EAJA fees after offset will be paid by a check or electronic fund transfer (EFT) made out to Plaintiff, but delivered to Plaintiff’s attorney.

23 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.

3 The parties further agree that the EAJA award is without prejudice to the right of Plaintiff’s attorney to seek attorney fees pursuant to Social Security Act § 206(b), 42 5 U.S.C. § 406(b), subject to the offset provisions of the EAJA. See 28 U.S.C. § 6 2412(c)(1) (2006).

Respectfully submitted, Dated: December 13, 2024 /s/ Jonathan O. Peña 10 J ONATHAN O. PEÑA 11 Attorney for Plaintiff Dated: December 16, 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: _*_Justin Lane Martin 18 Justin Lane Martin Special Assistant U.S. Attorney 19 Attorneys for Defendant 20 (*Permission to use electronic signature obtained via email on December 16, 2024).

{PROPOSED! ORDER 3 Based upon the parties’ Stipulation for the Award and Payment of Equal Access || to Justice Act Fees and Expenses (the “Stipulation’”), IT IS ORDERED that fees and expenses in the amount of NINE HUNDRED || SEVENTY-EIGHT 48/100 ($978.48) as authorized by the Equal Access to Justice Act || (EAJA), 28 U.S.C. § 2412(d), be awarded subject to the terms of the Stipulation.

10 | Ir IS SO ORDERED.

11 / | Dated: _ December 16, 2024 gyn Wis JEREMY D. PETERSON 13 UNITED STATES MAGISTRATE JUDGE -A-