(SS) Terry v. Commissioner of Social Security

Filing 21

STIPULATION AND ORDER re UNOPPOSED MOTION FOR THE AWARD OF ATTORNEY FEES PURSUANT TO THE EQUAL ACCESS TO JUSTICE ACT. Order signed by Magistrate Judge Sheila K. Oberto on 5/8/2024. (Kusamura, W)

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

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

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10 Kyle Terry,
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Case No. 1:23-cv-01188-SKO
Plaintiff,

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v.

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Martin O’Malley1, Commissioner of Social
Security,

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Defendant.

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STIPULATION AND UNOPPOSED MOTION
FOR THE AWARD OF ATTORNEY FEES
PURSUANT TO THE EQUAL ACCESS TO
JUSTICE ACT; ORDER

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 FORTY-SIX DOLLARS AND 93/100 ($5,146.93) under the

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Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d), and costs in the amount of zero dollars
($0.00) 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).
After the Court issues an order for EAJA fees to Plaintiff, the government will consider the

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25 matter of Plaintiff’s assignment of EAJA fees to counsel. Pursuant to Astrue v. Ratliff, 560 U.S. 586,
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Martin O’Malley became the Commissioner of Social Security on December 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 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).
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1 598, 130 S.Ct. 2521, 177 L.Ed.2d 91 (2010), the ability to honor the assignment will depend on
2 whether the fees are subject to any offset allowed under the United States Department of the
3 Treasury’s Offset Program. After the order for EAJA fees is entered, the government will determine
4 whether they are subject to any offset.
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Fees shall be made payable to Plaintiff, but if the Department of the Treasury determines that

6 Plaintiff does not owe a federal debt, then the government shall cause the payment of fees, expenses
7 and costs to be made directly to Counsel, pursuant to the assignment executed by Plaintiff. Any
8 payments made shall be delivered and made payable to Plaintiff’s counsel, Jonathan O. Peña.
9 Additionally, any payment of costs under 28 U.S.C. §1920 may be made either by electronic fund
10 transfer (ETF) or by check.
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This stipulation constitutes a compromise settlement of Plaintiff’s request for EAJA attorney
12 fees, and does not constitute an admission of liability on the part of Defendant under the EAJA or
13 otherwise. Payment of the agreed amount shall constitute a complete release from, and bar to, any
14 and all claims that Plaintiff and/or Counsel including Counsel’s firm may have relating to EAJA
15 attorney fees in connection with this action.
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This award is without prejudice to the rights of Counsel and/or Counsel’s firm to seek Social

17 Security Act attorney fees under 42 U.S.C. § 406(b), subject to the savings clause provisions of the
18 EAJA.
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Respectfully submitted,

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21 Dated: May 7, 2024
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/s/ Jonathan O. Peña
JONATHAN O. PEÑA
Attorney for Plaintiff

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24 Dated: May 7, 2024
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PHILLIP A. TALBERT
United States Attorney
MATHEW W. PILE
Associate General Counsel
Office of Program Litigation
Social Security Administration
By: _*_James Ki

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James Ki
Special Assistant U.S. Attorney
Attorneys for Defendant
(*Permission to use electronic signature
obtained via email on May 7, 2024).

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ORDER

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Based upon the parties’ Stipulation and Unopposed Motion for the Award and Payment of
Equal Access to Justice Act Fees and Expenses (the “Stipulation”) (Doc. 20), IT IS ORDERED that

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fees and expenses in the amount of FIVE THOUSAND ONE HUNDRED FORTY-SIX DOLLARS
AND 93/100 ($5,146.93) as authorized by the Equal Access to Justice Act (EAJA), 28 U.S.C. §

11 2412(d), be awarded subject to the terms of the Stipulation.
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IT IS SO ORDERED.

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/s/ Sheila K. Oberto

May 8, 2024

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UNITED STATES MAGISTRATE JUDGE

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