Felipe v. Commissioner of Social Security

Filing 18

Stipulation and Order for the award and payment of attorney fees and expenses pursuant to the Equal Access Justice Act, 28 U.S.C. § 2412 (d) and costs pursuant to 28 U.S.C. § 1920, signed by Magistrate Judge Sheila K. Oberto on 3/16/2015. (Rosales, O)

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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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STEVEN EDWARD FELIPE,

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

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Defendant.
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Case No.: 1:13-cv-01744-SKO
STIPULATION AND ORDER 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 SHEILA K. OBERTO, 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 Steven Felipe be
awarded attorney fees and expenses in the amount of three thousand four hundred
dollars ($3,400.00) 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).
After the Court issues an order for EAJA fees to Steven Felipe, the
government will consider the matter of Steven Felipe's assignment of EAJA fees to
Young Cho. Pursuant to Astrue v. Ratliff, 130 S.Ct. 2521, 2529 (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

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

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whether they are subject to any offset.

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Fees shall be made payable to Steven Felipe, but if the Department of the

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Treasury determines that Steven Felipe 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 Steven Edward Felipe. United States v. $186,416.00, 722 F.3d 1173,

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1176 (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 Young Cho.

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This stipulation constitutes a compromise settlement of Steven Felipe'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 Steven

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Edward Felipe and/or Young Cho 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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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.
Steven Felipe 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 award is without prejudice to the rights of Young Cho and/or the Law

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

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

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DATE: March 12, 2015

Respectfully submitted,

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LAW OFFICES OF LAWRENCE D. ROHLFING

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/s/ Young Cho
BY: __________________
Young Cho
Attorney for plaintiff Steven Edward Felipe

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DATE: March 12, 2015

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BENJAMIN B. WAGNER
United States Attorney

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/s/ Jean M. Turk
Jean M. Turk
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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Pursuant to the terms of the parties' stipulation, IT IS HEREBY ORDERED

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that Plaintiff is awarded attorney’s fees and expenses in the amount of $3,400.00

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under the EAJA.

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IT IS SO ORDERED.

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Dated:

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March 16, 2015

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

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