(SS) Xiong v. Commissioner of Social Security

Filing 21

STIPULATION and ORDER signed by Magistrate Judge Gary S. Austin on 9/16/2022 as follows: IT IS ORDERED that fees and expenses in the amount of SEVEN THOUSAND SIX HUNDRED DOLLARS AND 00/100 ($7,600.00) 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.(Rooney, M)

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Jonathan O. Peña, Esq.
CA Bar ID No.: 278044
Peña & Bromberg, PLC
2440 Tulare St., Ste. 320
Fresno, CA 93721
Telephone: [phone]
Facsimile: 559-439-9723
Email: [e-mail]
Attorney for Plaintiff, Ai Xiong

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UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
FRESNO DIVISION

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12 Ai Xiong,
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Case No. 1:21-cv-00134-GSA
Plaintiff,
v.

16 Kilolo Kijakazi, Acting
Commissioner of Social Security,
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Defendant.
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STIPULATION FOR THE AWARD
AND PAYMENT OF ATTORNEY
FEES AND EXPENSES PURSUANT
TO THE EQUAL ACCESS TO
JUSTICE ACT; |PROPOSED| ORDER

IT IS HEREBY STIPULATED by and between the parties through their

20 undersigned counsel, subject to the approval of the Court, that Plaintiff be awarded
21 attorney fees and expenses in the amount of SEVEN THOUSAND SIX HUNDRED
22 DOLLARS AND 00/100 ($7,600.00) under the Equal Access to Justice Act (EAJA), 28
23 U.S.C. § 2412(d), and cost in the amount of ZERO dollars ($0.00) under 28 U.S.C.
24 §1920. This amount represents compensation for all legal services rendered on behalf of
25 Plaintiff by counsel in connection with this civil action, in accordance with 28 U.S.C. §
26 2412(d).
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After the Court issues an order for EAJA fees to Plaintiff, the government will

2 consider the matter of Plaintiff’s assignment of EAJA fees to counsel. Pursuant to
3 Astrue v. Ratliff, 560 U.S. 586, 598, 130 S.Ct. 2521, 177 L.Ed.2d 91 (2010), the ability
4 to honor the assignment will depend on whether the fees are subject to any offset
5 allowed under the United States Department of the Treasury’s Offset Program. After
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the order for EAJA fees is entered, the government will determine whether they are
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subject to any offset.
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Fees shall be made payable to Plaintiff, but if the Department of the Treasury
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determines that Plaintiff does not owe a federal debt, then the government shall cause
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the payment of fees, expenses and costs to be made directly to Counsel, pursuant to
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the assignment executed by Plaintiff. Any payments made shall be delivered to
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Plaintiff’s counsel, Jonathan O. Peña.
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This stipulation constitutes a compromise settlement of Plaintiff’s request for
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EAJA attorney fees, and does not constitute an admission of liability on the part of
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Defendant under the EAJA or otherwise. Payment of the agreed amount shall
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constitute a complete release from, and bar to, any and all claims that Plaintiff and/or
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Counsel including Counsel’s firm may have relating to EAJA attorney fees in
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connection with this action.
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This award is without prejudice to the rights of Counsel and/or Counsel’s firm
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to seek Social Security Act attorney fees under 42 U.S.C. § 406(b), subject to the
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savings clause provisions of the EAJA.
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Respectfully submitted,
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Dated: September 12, 2022

/s/ Jonathan O. Peña
JONATHAN O. PEÑA
Attorney for Plaintiff

Dated: September 12, 2022

PHILLIP A. TALBERT

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United States Attorney
PETER K. THOMPSON
Acting Regional Chief Counsel, Region IX
Social Security Administration

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By: _*_Chantal R. Jenkins
Chantal R. Jenkins
Special Assistant U.S. Attorney
Attorneys for Defendant
(*Permission to use electronic signature
obtained via email on September 12, 2022)

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ORDER
Based upon the parties’ Stipulation for the Award and Payment of Equal Access

13 to Justice Act Fees and Expenses (the “Stipulation”),
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IT IS ORDERED that fees and expenses in the amount of SEVEN THOUSAND
SIX HUNDRED DOLLARS AND 00/100 ($7,600.00) as authorized by the Equal

17 Access to Justice Act (EAJA), 28 U.S.C. § 2412(d), be awarded subject to the terms of
18 the Stipulation.
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20 IT IS SO ORDERED.
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Dated:

September 16, 2022

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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