Rose 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 to Justice Act, 28 U.S.C. 2412(d) and Costs Pursuant to 28 U.S.C. 1920 signed by Magistrate Judge Gary S. Austin on 9/29/2015. (Martinez, A)
Young Cho
Attorney at Law: 189870
Law Offices of Lawrence D. Rohlfing
12631 East Imperial Highway, Suite C-115
Santa Fe Springs, CA 90670
Tel.: (562)868-5886
Fax: (562)868-8868
E-mail: rohlfing.office@rohlfinglaw.com
Attorneys for Plaintiff
Destiny Rose
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
DESTINY ROSE,
Plaintiff,
vs.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.
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Case No.: 1:14-cv-02007-GSA
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
TO THE HONORABLE GARY S. AUSTIN, 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 Destiny Rose be
awarded attorney fees and expenses in the amount of one thousand seven hundred
dollars ($1,700.00) 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 Destiny Rose, the
government will consider the matter of Destiny Rose'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 Program.
After the order for EAJA fees is entered, the government will determine whether
they are subject to any offset.
Fees shall be made payable to Destiny Rose, but if the Department of the
Treasury determines that Destiny Rose does not owe a federal debt, then the
government shall cause the payment of fees, expenses and costs to be made
directly to Law Offices of Lawrence D. Rohlfing, pursuant to the assignment
executed by Destiny Rose. United States v. $186,416.00, 722 F.3d 1173, 1176 (9th
Cir. 2013) ($186,416.00 II) (ordering fees paid to counsel because of an
assignment that did not interfere with a raised superior lien).1 Any payments made
shall be delivered to Young Cho.
1
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.
Destiny Rose 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.
This stipulation constitutes a compromise settlement of Destiny Rose's
request for EAJA attorney fees, and does not constitute an admission of liability on
the part of Defendant under the EAJA or otherwise. Payment of the agreed amount
shall constitute a complete release from, and bar to, any and all claims that Destiny
Rose and/or Young Cho including Law Offices of Lawrence D. Rohlfing may have
relating to EAJA attorney fees in connection with this action.
This award is without prejudice to the rights of Young Cho and/or the Law
Offices of Lawrence D. Rohlfing to seek Social Security Act attorney fees under
42 U.S.C. § 406(b), subject to the savings clause provisions of the EAJA.
DATE: September 28, 2015
Respectfully submitted,
LAW OFFICES OF LAWRENCE D. ROHLFING
/s/ Young Cho
BY: __________________
Young Cho
Attorney for plaintiff Destiny Rose
DATE: September 28, 2015
BENJAMIN B. WAGNER
United States Attorney
/s/ Richard Rodriguez
Richard Rodriguez
Special Assistant United States Attorney
Attorneys for Defendant Carolyn W. Colvin,
Acting Commissioner of Social Security
(Per e-mail authorization)
ORDER
Pursuant to the above stipulation between the parties, the Plaintiff shall be
awarded attorney fees and expenses in the amount of one thousand seven hundred
dollars ($1,700.00) under the Equal Access to Justice Act, 28 U.S.C. § 2412(d).
This award is subject to the terms of the above-referenced stipulation and
payments shall be made pursuant to Astrue v. Ratliff, 130 S.Ct. 2521, 2529 (2010),
as outlined above.
IT IS SO ORDERED.
Dated:
September 29, 2015
/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE
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