Opinion
Case No.: 1:11-cv-00797-SMS
03-27-2012
MARCELINO MENDEZ, Plaintiff, v. MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant.
Young Cho Attorney for plaintiff Marcelino Mendez BENJAMIN B. WAGNER United States Attorney Lynn M. Harada Special Assistant United States Attorney Attorneys for Defendant Michael J. Astrue, Commissioner of Social Security (Per e-mail authorization)
Young Cho
Attorney at Law: 189870
Law Offices of Lawrence D. Rohlfing
Attorneys for Plaintiff
Marcelino Mendez
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)TO THE HONORABLE SANDRA M. SNYDER, 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 Marcelino Mendez be awarded attorney fees and expenses in the amount of one thousand six hundred dollars ($1,600.00) 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 Marcelino Mendez, the government will consider the matter of Marcelino Mendez's assignment of EAJA fees to Young Cho. Pursuant to Astrue v. Ratliff, 130 S.Ct. 2521, 2252-2253 (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 Marcelino Mendez, but if the Department of the Treasury determines that Marcelino Mendez 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 Marcelino Mendez. Any payments made shall be delivered to Young Cho.
This stipulation constitutes a compromise settlement of Marcelino Mendez's request for EAJA attorney fees, and does not constitute an admission of liability on the part of Defendant under the EAJA. Payment of the agreed amount shall constitute a complete release from, and bar to, any and all claims that Marcelino Mendez and/or Young Cho including Law Offices of Lawrence D. Rohlfing may have relating to EAJA attorney fees in connection with this action.
Young Cho reserves the right to contend that any non-payment caused by the collection of a federal debt owed by Marcelino Mendez violates 31 C.F.R. § 285.5(e)(5) and Morrison v. C.I.R., 565 F.3d 658, 667 (9th Cir. 2009). Nothing in this stipulation shall be construed as an admission by Young Cho that the Government has the right or authority to offset the fees due and payable pursuant to this stipulation.
This award is without prejudice to the rights of Young Cho and/or 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.
Respectfully submitted,
LAW OFFICES OF LAWRENCE D. ROHLFING
BY: _________________
Young Cho
Attorney for plaintiff Marcelino Mendez
BENJAMIN B. WAGNER
United States Attorney
Lynn M. Harada
Special Assistant United States Attorney
Attorneys for Defendant Michael J. Astrue,
Commissioner of Social Security
(Per e-mail authorization)
ORDER
IT IS SO ORDERED.
Sandra M. Snyder
UNITED STATES MAGISTRATE JUDGE