(SS) Escalante v. Commissioner of Social Security

Filing 20

STIPULATION AND UNOPPOSED MOTION FOR THE AWARD AND PAYMENT OF ATTORNEY FEES AND EXPENSES PURSUANT TO THE EQUAL ACCESS TO JUSTICE ACT; ORDER. Order signed by Magistrate Judge Sheila K. Oberto on 8/28/2024. (Kusamura, W)

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Jonathan O. Peña, Esq.
CA Bar ID No.: 278044
Peña & Bromberg, PLC
3467 W. Shaw Ave., Ste 100
Fresno, CA 93711
Telephone: [phone]
Facsimile: 559-439-9723
Email: [e-mail]
Attorney for Plaintiff, Aura Ayala Escalante

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

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12 Aura Ayala Escalante,

Case No. 1:23-cv-01656-SKO

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

Plaintiff,

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v.

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16 Martin O’Malley , Commissioner of
Social Security,
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Defendant.
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(Doc. 19)

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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
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THIRTY -ONE DOLLARS AND 00/100 ($7,131.00) under the Equal Access to Justice

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Martin O’Malley became the Commissioner of Social Security on December 20,
26 2023. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Martin O’Malley
27 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
28 Social Security Act, 42 U.S.C. § 405(g).
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1 Act (EAJA), 28 U.S.C. § 2412(d), and costs in the amount of ZERO dollars ($0.00)
2 under 28 U.S.C. §1920. This amount represents compensation for all legal services
3 rendered on behalf of Plaintiff by counsel in connection with this civil action, in
4 accordance with 28 U.S.C. §§ 1920, 2412(d).
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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 counsel. Pursuant to
Astrue v. Ratliff, 560 U.S. 586, 598, 130 S.Ct. 2521, 177 L.Ed.2d 91 (2010), the ability
to honor the assignment will depend on whether the fees are subject to any offset
allowed under the United States Department of the Treasury’s Offset Program. After
the order for EAJA fees is entered, the government will determine whether they are
subject to any offset.
Fees shall be made payable to Plaintiff, but if the Department of the Treasury
determines that Plaintiff does not owe a federal debt, then the government shall cause
the payment of fees, expenses and costs to be made directly to Counsel, pursuant to
the assignment executed by Plaintiff. Any payments made shall be delivered and
made payable to Plaintiff’s counsel, Jonathan O. Peña. Additionally, any payment of
costs under 28 U.S.C. §1920 may be made either by electronic fund transfer (EFT) or
by check.
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.
This award is without prejudice to the rights of Counsel and/or Counsel’s firm
to seek Social Security Act attorney fees under 42 U.S.C. § 406(b), subject to the
savings clause provisions of the EAJA.
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Respectfully submitted,

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3 Dated: August 27, 2024
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6 Dated: August 27, 2024
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/s/ Jonathan O. Peña
JONATHAN O. PEÑA
Attorney for Plaintiff
PHILLIP A. TALBERT
United States Attorney
MATHEW W. PILE
Associate General Counsel
Office of Program Litigation
Social Security Administration
By: _*_Erin Jurrens
Erin Jurrens
Special Assistant U.S. Attorney
Attorneys for Defendant
(*Permission to use electronic signature
obtained via email on August 27, 2024).

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ORDER

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Based upon the parties’ Stipulation and Unopposed Motion for the Award and Payment of

18 Equal Access to Justice Act Fees and Expenses (the “Stipulation”) (Doc. 19),
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IT IS ORDERED that fees and expenses in the amount of SEVEN THOUSAND ONE

20 HUNDRED THIRTY -ONE DOLLARS AND 00/100 ($7,131.00) as authorized by the Equal Access
21 to Justice Act (EAJA), 28 U.S.C. § 2412(d) and costs in the amount of ZERO dollars ($0.00) under 28
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U.S.C. §1920, be awarded subject to the terms of the Stipulation.

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Dated: August 28, 2024
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/s/ Sheila K. Oberto

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UNITED STATES MAGISTRATE JUDGE

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