Martinez v. Commissioner of Social Security

Filing 18

STIPULATION and ORDER Awarding Payment of Attorney Fees Pursuant to the Equal Access to Justice Act, 28 U.S.C. 2412 (d). Based upon the parties Stipulation for the Award and Payment of Equal Access to Justice Act Fees and Expenses filed on April 23, 2015 (Doc. 17) (the Stipulation), IT IS ORDERED that fees and expenses in the amount of $3,200.00 as authorized by 28 U.S.C. § 2412, be awarded subject to the terms of the Stipulation. signed by Magistrate Judge Barbara A. McAuliffe on 5/1/2015. (Herman, H)

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Brian C. Shapiro
Attorney at Law: 192789
Law Offices of Lawrence D. Rohlfing
12631 East Imperial Highway, Suite C-115
Santa Fe Springs, CA 90670
Tel.: [phone]
Fax: [phone]
E-mail: [e-mail]
Attorneys for Plaintiff
Frank Martinez

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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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FRANK MARTINEZ,

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Plaintiff,
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vs.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.

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Case No.: 1:13-cv-01491-BAM
STIPULATION AND ORDER
AWARDING PAYMENT OF
ATTORNEY FEES PURSUANT TO
THE EQUAL ACCESS TO JUSTICE
ACT, 28 U.S.C. § 2412(d)

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TO THE HONORABLE BARBARA A. MCALUIFFE, MAGISTRATE
JUDGE OF THE DISTRICT COURT:
IT IS HEREBY STIPULATED by and between the parties through their
undersigned counsel, subject to the approval of the Court, that Frank Martinez be
awarded attorney fees and expenses in the amount of THREE THOUSAND TWO
HUNDRED dollars ($3,200) under the Equal Access to Justice Act (EAJA), 28
U.S.C. § 2412(d). 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).

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After the Court issues an order for EAJA fees to Frank Martinez, the

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government will consider the matter of Frank Martinez's assignment of EAJA fees

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to Brian C. Shapiro. The retainer agreement containing the assignment is attached

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as exhibit 1. Pursuant to Astrue v. Ratliff, 130 S.Ct. 2521, 2529 (2010), the ability

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to honor the assignment will depend on whether the fees are subject to any offset

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allowed under the United States Department of the Treasury's Offset Program.

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After the order for EAJA fees is entered, the government will determine whether

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they are subject to any offset.

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Fees shall be made payable to Frank Martinez, but if the Department of the

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Treasury determines that Frank Martinez does not owe a federal debt, then the

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government shall cause the payment of fees, expenses and costs to be made

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directly to Law Offices of Lawrence D. Rohlfing, pursuant to the assignment

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executed by Frank Martinez. United States v. $186,416.00, 722 F.3d 1173, 1176

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(9th Cir. 2013) ($186,416.00 II) (ordering fees paid to counsel because of an

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assignment that did not interfere with a raised superior lien).1 Any payments made

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shall be delivered to Brian C. Shapiro.

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The Commissioner does not stipulate to the citation of $186,416.00 II, and will
not participate in representing to this Court that it carries legal import in these
proceedings. $186,416 II involved a different statute and very different factual
circumstances than those presented here, or in other Social Security cases.
Because the parties have agreed to the payment of EAJA fees, and the amount, and
to avoid motion practice solely related to Plaintiff’s citation, the Commissioner
agrees to this stipulation. The Commissioner reserves the right to challenge the
applicability of $186,416 II to any Social Security case, and this Stipulation should
not be construed as a waiver of such reservation.
Frank Martinez contends that U.S. v. $186,416.00 in U.S. Currency, 642 F.3d 753,
757 (9th Cir. 2011) ($186,416.00 I) held that there is no functional difference
between the CAFRA and EAJA in terms of "ownership" of the fee.
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This stipulation constitutes a compromise settlement of Frank Martinez's

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request for EAJA attorney fees, and does not constitute an admission of liability on

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the part of Defendant under the EAJA or otherwise. Payment of the agreed amount

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shall constitute a complete release from, and bar to, any and all claims that Frank

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Martinez and/or Brian C. Shapiro including Law Offices of Lawrence D. Rohlfing

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may have relating to EAJA attorney fees in connection with this action.

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This award is without prejudice to the rights of Brian C. Shapiro and/or the

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Law Offices of Lawrence D. Rohlfing to seek Social Security Act attorney fees

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under 42 U.S.C. § 406(b), subject to the savings clause provisions of the EAJA.

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DATE: April 23, 2015

Respectfully submitted,
LAW OFFICES OF LAWRENCE D. ROHLFING

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/s/ Brian C. Shapiro
BY: __________________
Brian C. Shapiro
Attorney for plaintiff Frank Martinez

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DATED: April 23, 2015
BENJAMIN B. WAGNER
DONNA L. CALVERT
Regional Chief Counsel, Region IX
Social Security Administration
/s/ Lynn M. Harada
Lynn M. Harada
Special Assistant United States Attorney
Attorneys for Defendant Carolyn W. Colvin,
Acting Commissioner of Social Security
(Per e-mail authorization)

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ORDER

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

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Access to Justice Act Fees and Expenses filed on April 23, 2015 (Doc. 17) (“the

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Stipulation”), IT IS ORDERED that fees and expenses in the amount of $3,200.00

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as authorized by 28 U.S.C. § 2412, be awarded subject to the terms of the

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Stipulation.

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IT IS SO ORDERED.

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Dated:

May 1, 2015

/s/ Barbara

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE