Margulis v. Commissioner of Social Security

Filing 30

STIPULATION and ORDER for the AWARD AND PAYMENT OF ATTORNEY FEES AND EXPENSES. Fees and expenses in the amount of $6,900.00, as authorized by 28 U.S.C. § 2412, shall be awarded subject to the terms of the Stipulation. Order signed by Magistrate Judge Sheila K. Oberto on 8/21/2015. (Timken, A)

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Monica Perales
Attorney at Law: 297739
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]

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Attorneys for Plaintiff
Max Sheldon Margulis

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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA

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

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Case No.: 1:13-cv-02021-SKO
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 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 Max Sheldon
Margulis be awarded attorney fees and expenses in the amount of six thousand
nine hundred dollars ($6,900.00) 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).

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After the Court issues an order for EAJA fees to Max Sheldon Margulis, the

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government will consider the matter of Max Sheldon Margulis's assignment of

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EAJA fees to Monica Perales. The retainer agreement containing the assignment is

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

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the ability to honor the assignment will depend on whether the fees are subject to

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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 Max Sheldon Margulis, but if the Department

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of the Treasury determines that Max Sheldon Margulis does not owe a federal

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debt, then the government shall cause the payment of fees, expenses and costs to

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

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assignment executed by Max Sheldon Margulis. United States v. $186,416.00, 722

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F.3d 1173, 1176 (9th Cir. 2013) ($186,416.00 II) (ordering fees paid to counsel

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because of an assignment that did not interfere with a raised superior lien). 1 Any

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payments made shall be delivered to Monica Perales.

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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.

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Max S. Margulis 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 Max Sheldon

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Margulis's request for EAJA attorney fees, and does not constitute an admission of

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liability on the part of Defendant under the EAJA or otherwise. Payment of the

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agreed amount shall constitute a complete release from, and bar to, any and all

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claims that Max Sheldon Margulis and/or Monica Perales including Law Offices of

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Lawrence D. Rohlfing may have relating to EAJA attorney fees in connection with

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this action.

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This award is without prejudice to the rights of Monica Perales 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: August 18, 2015

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LAW OFFICES OF LAWRENCE D. ROHLFING
/s/ Monica Perales
BY: __________________
Monica Perales
Attorney for plaintiff Max Sheldon Margulis

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Respectfully submitted,

DATED:

BENJAMIN B. WAGNER
United States Attorney
LEON W. WEIDMAN
Chief, Civil Division
Assistant United States Attorney

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/s/ Urmila R. Taylor
Urmila R. Taylor
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 parties’ Stipulation for the Award and Payment of Equal

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Access to Justice Act Fees, Costs, and Expenses, IT IS ORDERED that fees and

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expenses in the amount of $6,900.00, as authorized by 28 U.S.C. § 2412, be

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awarded subject to the terms of the Stipulation.

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IT IS SO ORDERED.
Dated:

August 21, 2015

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE