(SS) Dominguez v. Commissioner of Social Security

Filing 24

ORDER on 23 Stipulation for the Award and Payment of Attorney Fees and Expenses Pursuant to the Equal Access to Justice Act signed by Magistrate Judge Gary S. Austin on 1/3/2025. (Deputy Clerk AML)

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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, Jennifer Michelle Dominguez

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

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12 Jennifer Michelle Dominguez,

Case No. 1:23-cv-01785-KES-GSA

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STIPULATION 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 Carolyn Colvin , ACTING
COMMISIONER OF SOCIAL
17 SECURITY,
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Defendant.
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IT IS HEREBY STIPULATED by and between the parties through their
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undersigned counsel, subject to the approval of the Court, that Plaintiff be awarded
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attorney fees and expenses in the amount of NINE THOUSAND TWO HUNDRED
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FIFTY DOLLARS AND 00/100 ($9,250.00) under the Equal Access to Justice Act
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24 (EAJA), 28 U.S.C. § 2412(d), and costs in the amount of FOUR HUNDRED AND

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Carolyn Colvin became the Commissioner of Social Security on November 30,
26 2024. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Carolyn Colvin
27 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
28 205(g) of the Social Security Act, 42 U.S.C. § 405(g).

1 FIVE DOLLARS AND 00/100 ($405.00) under 28 U.S.C. §1920. This amount
2 represents compensation for all legal services rendered on behalf of Plaintiff by counsel
3 in connection with this civil action, in accordance with 28 U.S.C. §§ 1920, 2412(d).
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Plaintiff was the prevailing party in this matter and Plaintiff is an individual
5 whose net worth does not exceed $2,000,000 at the time the civil action was filed.
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After the Court issues an order for EAJA fees to Plaintiff, the government will
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consider the matter of Plaintiff’s assignment of EAJA fees to Plaintiff’s attorney.
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Under Astrue v. Ratliff, 130 S. Ct. 2521, 2528-29 (2010), EAJA fees awarded by this
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Court belong to the Plaintiff and are subject to offset under the Treasury Offset Program
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(31 U.S.C. § 3716(c)(3)(B) (2006)). Any EAJA fees should therefore be awarded to
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Plaintiff and not to Plaintiff’s attorney. If, after receiving the Court’s EAJA fee order,
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the Commissioner (1) determines that Plaintiff has assigned his right to EAJA fees to
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his attorney; (2) determines that Plaintiff does not owe a debt that is subject to offset
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15 under the Treasury Offset Program, and (3) agrees to waive the requirements of the
16 Anti-Assignment Act, then the EAJA fees will be made payable to Plaintiff’s attorney.
17 However, if there is a debt owed under the Treasury Offset Program, the Commissioner
18 cannot agree to waive the requirements of the Anti-Assignment Act, and the remaining
19 EAJA fees after offset will be paid by a check or electronic fund transfer (EFT) made
20 out to Plaintiff, but delivered to Plaintiff’s attorney.
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This stipulation constitutes a compromise settlement of Plaintiff’s request for

22 EAJA attorney fees, and does not constitute an admission of liability on the part of
23 Defendant under the EAJA or otherwise. Payment of the agreed amount shall constitute
24 a complete release from, and bar to, any and all claims that Plaintiff and/or Counsel
25 including Counsel’s firm may have relating to EAJA attorney fees in connection with
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this action.

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The parties further agree that the EAJA award is without prejudice to the right of

2 Plaintiff’s attorney to seek attorney fees pursuant to Social Security Act § 206(b), 42
3 U.S.C. § 406(b), subject to the offset provisions of the EAJA. See 28 U.S.C. §
4 2412(c)(1) (2006).
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Respectfully submitted,

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Dated: January 2, 2025

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

Dated: January 2, 2025

PHILLIP A. TALBERT
United States Attorney
MATHEW W. PILE
Associate General Counsel
Office of Program Litigation
Social Security Administration

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By: _*_Marcelo N. Illarmo
Marcelo N. Illarmo
Special Assistant U.S. Attorney
Attorneys for Defendant
(*Permission to use electronic signature
obtained via email on January 2, 2025).

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ORDER

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

4 to Justice Act Fees and Expenses (the “Stipulation”),
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IT IS ORDERED that fees and expenses in the amount of NINE THOUSAND

7 TWO HUNDRED FIFTY DOLLARS AND 00/100 ($9,250.00) as authorized by the
8 Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d) and costs in the amount of
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FOUR HUNDRED AND FIVE DOLLARS AND 00/100 ($405.00) under 28 U.S.C.

11 §1920, be awarded subject to the terms of the Stipulation.
12 IT IS SO ORDERED.
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Dated:

January 3, 2025

/s/ Gary S. Austin_______________
UNITED STATES MAGISTRATE JUDGE

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