Fernandes v. Commissioner of Social Security

Filing 32

STIPULATION and ORDER APPROVING SETTLEMENT OF ATTORNEY FEES; finding as moot 30 Motion for Attorney Fees. Signed by Magistrate Judge Jeremy D. Peterson on 7/31/2019. (Apodaca, P)

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1 2 3 4 5 6 7 MCGREGOR W. SCOTT United States Attorney DEBORAH LEE STACHEL Regional Chief Counsel, Region IX Social Security Administration CAROLYN B. CHEN, CSBN 256628 Special Assistant United States Attorney 160 Spear Street, Suite 800 San Francisco, California 94105 Telephone: (415) 977-8956 Facsimile: (415) 744-0134 E-Mail: Carolyn.Chen@ssa.gov 8 9 Attorneys for Defendant UNITED STATES DISTRICT COURT 10 EASTERN DISTRICT OF CALIFORNIA 11 12 DEBRA FERNANDES, 13 Plaintiff, 14 15 16 vs. ANDREW SAUL,1 Commissioner of Social Security, Defendant. 17 18 ) ) ) ) ) ) ) ) ) ) ) ) Case No.: 1:18-cv-00114-JDP STIPULATION AND PROPOSED ORDER APPROVING SETTLEMENT OF ATTORNEY FEES PURSUANT TO THE EQUAL ACCESS TO JUSTICE ACT, 28 U.S.C. § 2412(d) 19 IT IS HEREBY STIPULATED by and between the parties, through their undersigned 20 21 22 23 counsel, subject to the Court’s approval, that Plaintiff be awarded attorney fees in the amount of FIVE THOUSAND SEVEN HUNDRED DOLLARS ($5,700) under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d). This amount represents compensation for all legal services 24 25 26 27 28 1 Andrew Saul is now the Commissioner of Social Security and is automatically substituted as a party pursuant to Fed. R. Civ. P. 25(d). See also section 205(g) of the Social Security Act, 42 U.S.C. § 405(g) (action survives regardless of any change in the person occupying the office of Commissioner of Social Security). 1 1 rendered on behalf of Plaintiff by counsel in connection with this civil action, in accordance with 2 28 U.S.C. § 2412(d). 3 After the Court issues an order for EAJA fees to Plaintiff, the government will consider 4 the matter of Plaintiff’s assignment of EAJA fees to Plaintiff’s attorney. Pursuant to Astrue v. 5 Ratliff, 560 U.S. 586, 598 (2010), the ability to honor the assignment will depend on whether the 6 fees are subject to any offset allowed under the United States Department of the Treasury’s 7 Offset Program. After the order for EAJA fees is entered, the government will determine 8 whether they are subject to any offset. 9 Fees shall be made payable to Plaintiff, but if the Department of the Treasury determines 10 that Plaintiff does not owe a federal debt, then the government shall cause the payment of fees to 11 be made directly to Kelsey Mackenzie Brown pursuant to the assignment executed by Plaintiff. 12 Any payments made shall be delivered to Plaintiff’s counsel. 13 This stipulation constitutes a compromise settlement of Plaintiff's request for EAJA 14 attorney fees and expenses, and does not constitute an admission of liability on the part of 15 Defendant under the EAJA or otherwise. Payment of the agreed amount shall constitute a 16 complete release from, and bar to, any and all claims that Plaintiff and/or Plaintiff’s counsel, 17 including Kelsey Mackenzie Brown, may have relating to EAJA attorney fees and expenses in 18 connection with this action. 19 This award is without prejudice to the rights of Plaintiff’s counsel and/or Kelsey 20 Mackenzie Brown to seek Social Security Act attorney fees under 42 U.S.C. § 406(b), subject to 21 the savings clause provisions of the EAJA. 22 Respectfully submitted, 23 24 Dated: July 23, 2019 By: /s/ Kelsey Mackenzie Brown KELSEY MACKENZIE BROWN Attorney for Plaintiff (As authorized by email on July 23, 2019) 25 26 27 28 Dated: July 23, 2019 Respectfully submitted, 2 1 MCGREGOR W. SCOTT United States Attorney DEBORAH LEE STACHEL Regional Chief Counsel, Region IX Social Security Administration 2 3 4 By: 5 6 7 /s/ Carolyn B. Chen CAROLYN B. CHEN Special Assistant U.S. Attorney Attorneys for Defendant 8 9 10 ORDER 11 Pursuant to stipulation, it is ordered that plaintiff shall be awarded attorney fees in the 12 13 amount of five thousand seven hundred dollars ($5,700) as authorized by 28 U.S.C. § 2412(d), 14 subject to the terms of the above-referenced stipulation. 15 Plaintiff’s motion for attorney fees, ECF No. 30, is dismissed as moot. 16 17 IT IS SO ORDERED. 18 19 Dated: July 31, 2019 UNITED STATES MAGISTRATE JUDGE 20 21 22 No. 205 23 24 25 26 27 28 3

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