Emberson v. Commissioner of Social Security

Filing 21

STIPULATION and ORDER AWARDING Plaintiff, Penny Esther Emberson, attorney fees and expenses in the amount of $4700.00 as authorized by 28 U.S.C. § 2412, and no costs as authorized by 28 U.S.C. § 1920. Order signed by Magistrate Judge Erica P. Grosjean on 12/8/2017. (Rooney, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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PENNY ESTHER EMBERSON,

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Plaintiff,
v.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.

Case No.: 1:16-cv-01587-EPG
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 ERICA P. GROSJEAN, MAGISTRATE JUDGE OF THE
DISTRICT COURT:
IT IS HEREBY STIPULATED, by and between the parties through their undersigned

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counsel, subject to the approval of the Court, that Penny Esther Emberson be awarded attorney

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fees in the amount of FOUR THOUSAND SEVEN HUNDRED dollars ($4700)) under the

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Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d). This amount represents compensation

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for all legal services rendered on behalf of Plaintiff by counsel in connection with this civil

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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 Penny Esther Emberson, the

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government will consider the matter of Penny Esther Emberson's assignment of EAJA fees to
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Brian C. Shapiro. The retainer agreement containing the assignment is attached as exhibit 1.

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

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will depend on whether the fees are subject to any offset allowed under the United States

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Department of the Treasury's Offset Program. After the order for EAJA fees is entered, the

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government will determine whether they are subject to any offset.

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Fees shall be made payable to Penny Esther Emberson, but if the Department of the

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Treasury determines that Penny Esther Emberson 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 directly to Law

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Offices of Lawrence D. Rohlfing, pursuant to the assignment executed by Penny Esther

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Emberson.1 Any payments made shall be delivered to Brian C. Shapiro.

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This stipulation constitutes a compromise settlement of Penny Esther Emberson's request

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

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under the EAJA or otherwise. Payment of the agreed amount shall constitute a complete release

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from, and bar to, any and all claims that Penny Esther Emberson and/or Brian C. Shapiro

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including Law Offices of Lawrence D. Rohlfing may have relating to EAJA attorney fees in

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connection with this action.

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This award is without prejudice to the rights of Brian C. Shapiro and/or the Law Offices

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of Lawrence D. Rohlfing to seek Social Security Act attorney fees under 42 U.S.C. § 406(b),

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subject to the savings clause provisions of the EAJA.

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DATE: December 7, 2017

Respectfully submitted,

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LAW OFFICES OF LAWRENCE D. ROHLFING

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/s/ Brian C. Shapiro

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BY: __________________

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Brian C. Shapiro

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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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Attorney for plaintiff Penny Esther Emberson

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DATED: December 7, 2017 PHILLIP A. TALBERT
United States Attorney

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/s/ Daniel P. Talbert

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DANIEL P. TALBERT

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Special Assistant United States Attorney

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Attorneys for Defendant NANCY A. BERRYHILL, Acting

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Commissioner of Social Security (Per e-mail authorization)

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ORDER
Based upon the stipulation of the parties, IT IS ORDERED that Plaintiff Penny Esther

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Emberson be awarded attorney fees and expenses in the amount of $4700.00 as authorized by 28

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U.S.C. § 2412, and no costs as authorized by 28 U.S.C. § 1920.

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IT IS SO ORDERED.
Dated:

December 8, 2017

/s/
UNITED STATES MAGISTRATE JUDGE

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PROOF OF SERVICE

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STATE OF CALIFORNIA, COUNTY OF LOS ANGELES

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I am employed in the county of Los Angeles, State of California. I am over the age of 18

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and not a party to the within action. My business address is 12631 East Imperial Highway, Suite

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C-115, Santa Fe Springs, California 90670.

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On this day of December 8, 2017, I served the foregoing document described as

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STIPULATION FOR THE AWARD AND PAYMENT OF ATTORNEY FEES AND

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EXPENSES PURSUANT TO THE EQUAL ACCESS TO JUSTICE ACT, 28 U.S.C. § 2412(d)

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AND COSTS PURSUANT TO 28 U.S.C. § 1920 on the interested parties in this action by

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placing a true copy thereof enclosed in a sealed envelope addressed as follows:

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Ms. Penny Esther Emberson

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18533 Norwalk Drive

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Madera, CA 93638

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I caused such envelope with postage thereon fully prepaid to be placed in the United
States mail at Santa Fe Springs, California.
I declare under penalty of perjury under the laws of the State of California that the above
is true and correct.
I declare that I am employed in the office of a member of this court at whose direction the
service was made.

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___

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Brian C. Shapiro

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TYPE OR PRINT NAME

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/s/ Brian C. Shapiro____________
SIGNATURE

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CERTIFICATE OF SERVICE

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FOR CASE NUMBER 1:16-CV-01587-EPG

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I hereby certify that I electronically filed the foregoing with the Clerk of the Court for
this court by using the CM/ECF system on December 8, 2017.
I certify that all participants in the case are registered CM/ECF users and that service
will be accomplished by the CM/ECF system, except the plaintiff served herewith by mail.

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/s/ Brian C. Shapiro

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_______________________________

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Brian C. Shapiro

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Attorneys for Plaintiff

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