Smith v. Commissioner of Social Security

Filing 22

STIPULATION and ORDER 21 for the Award and Payment of Attorney Fees and Expenses, signed by Magistrate Judge Jennifer L. Thurston on 2/6/2015. (Hall, S)

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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
Ben Smith

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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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BEN SMITH,

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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-01717-JLT
STIPULATION FOR THE AWARD
AND PAYMENT OF ATTORNEY
FEES AND EXPENSES PURSUANT
TO THE EQUAL ACCESS TO
JUSTICE ACT, 28 U.S.C. § 2412(d)
AND COSTS PURSUANT TO 28
U.S.C. § 1920

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TO THE HONORABLE JENNIFER L. THURSTON, 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 Ben Smith be
awarded attorney fees and expenses in the amount of THREE THOUSAND
SEVEN HUNDRED FIFTY dollars ($3750) 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 Ben Smith, the government

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will consider the matter of Ben Smith's assignment of EAJA fees to Brian C.

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Shapiro. The retainer agreement containing the assignment is attached as exhibit

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

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

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

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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 Ben Smith, but if the Department of the

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Treasury determines that Ben Smith 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 Ben Smith. United States v. $186,416.00, 722 F.3d 1173, 1176 (9th

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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.
Ben Smith 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 Ben Smith's request

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

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of 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 Ben Smith

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

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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: February 4, 2015 Respectfully submitted,

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LAW OFFICES OF LAWRENCE D. ROHLFING

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/s/ Brian C. Shapiro
BY: __________________
Brian C. Shapiro
Attorney for plaintiff Ben Smith

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DATED: February 4, 2015
BENJAMIN B. WAGNER
United States Attorney

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/s/ Tina Saladino
Tina Saladino
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
IT IS ORDERED that fees and expenses in the amount of $3750 as authorized by 28
U.S.C. § 2412 be awarded subject to the terms of the Stipulation.

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IT IS SO ORDERED.
Dated:

February 6, 2015

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE