Mendoza v. Commissioner of Social Security

Filing 24

STIPULATION and ORDER for 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 2/1/2017: Pursuant to the parties' Stipulation filed on January 31, 2017 (Doc. 23 ), Equal Access to Justice Act fees ("EAJA") and expenses in the amount of four thousand seven hundred dollars ($4,700.00) as authorized by 28 U.S.C. §§ 2412, and 1920, shall be awarded to Plaintiff's counsel. Any monies paid shall me made pursuant to Astrue v. Ratliff, 130 S. Ct. 1521, 2529 (2010), and in accordance to the terms of the stipulation. (Valdez, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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PAUL MENDOZA,

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Plaintiff,

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vs.
NANCY A. BERRYHILL,1 Acting
Commissioner of Social Security,

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Defendant.
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Case No.: 1:15-cv-00777-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

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TO THE HONORABLE GARY S. AUSTIN, MAGISTRATE JUDGE OF
THE UNITED STATES DISTRICT COURT:

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IT IS HEREBY STIPULATED by and between the parties through their

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undersigned counsel, subject to the approval of the Court, that Paul Mendoza be

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awarded attorney fees in the amount of four thousand seven hundred dollars

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($4,700.00) under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d).

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This amount represents compensation for all legal services rendered on behalf of

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Nancy A. Berryhill is now the Acting Commissioner of Social Security. Pursuant to Rule
25(d) of the Federal Rules of Civil Procedure, Nancy A. Berryhill should be substituted for
Acting Commissioner Carolyn W. Colvin as the defendant in this suit. No further action needs
to be taken to continue this suit by reason of the last sentence of section 205(g) of the Social
Security Act, 42 U.S.C. § 405(g).

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Plaintiff by counsel in connection with this civil action, in accordance with 28

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U.S.C. §§ 1920; 2412(d).

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After the Court issues an order for EAJA fees to Paul Mendoza, the

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government will consider the matter of Paul Mendoza's assignment of EAJA fees

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to Young Cho. The retainer agreement containing the assignment is attached as

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

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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

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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 Paul Mendoza, but if the Department of the

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Treasury determines that Paul Mendoza 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 Paul Mendoza.2 Any payments made shall be delivered to Young

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Cho.

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This stipulation constitutes a compromise settlement of Paul Mendoza'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 Paul

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Mendoza and/or Young Cho including Law Offices of Lawrence D. Rohlfing may

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

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The parties do not stipulate whether counsel for the plaintiff has a cognizable lien
under federal law against the recovery of EAJA fees that survives the Treasury
Offset Program.
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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.
DATE: January 30, 2017
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 Paul Mendoza

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DATE: January 30, 2017

PHILLIP A. TALBERT
Acting United States Attorney

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/s/ Donna W. Anderson

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DONNA W. ANDERSON
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 filed on January 31, 2017 (Doc. 23),
Equal Access to Justice Act fees (“EAJA”) and expenses in the amount of four
thousand seven hundred dollars ($4,700.00) as authorized by 28 U.S.C. §§ 2412,

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and1920, shall be awarded to Plaintiff’s counsel. Any monies paid shall me made

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pursuant to Astrue v. Ratliff, 130 S. Ct. 1521, 2529 (2010), and in accordance to the

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terms of the stipulation.

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IT IS SO ORDERED.
Dated:

February 1, 2017

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE