Opinion
2:13-cv-01260-JCM-CWH
07-15-2014
SUSAN M TAYLOR, Plaintiff, v. CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.
ROHLFING & KALAGIAN, LLP Marc V. Kalagian Attorney for plaintiff Susan M Taylor Daniel G. Bogden United States Attorney Michael K. Marriott Special Assistant United States Attorney Attorneys for Defendant Carolyn W. Colvin, Acting Commissioner of Social Security (Per e-mail authorization)
ROHLFING & KALAGIAN, LLP Marc V. Kalagian Attorney for plaintiff Susan M Taylor
Daniel G. Bogden United States Attorney
Michael K. Marriott Special Assistant United States Attorney Attorneys for Defendant Carolyn W. Colvin, Acting Commissioner of Social Security (Per e-mail authorization)
STIPULATION FOR THE AWARD AND PAYMENT OF ATTORNEY FEES PURSUANT TO THE EQUAL ACCESS TO JUSTICE ACT, 28 U.S.C. § 2412(d)
TO THE HONORABLE CARL W. HOFFMAN, 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 Susan M Taylor be awarded attorney fees in the amount of Two Thousand dollars ($2,000.00) 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 Susan M Taylor, the government will consider the matter of Susan M Taylor's assignment of EAJA fees to Marc V. Kalagian. The retainer agreement containing the assignment is attached as exhibit 1. 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 Susan M Taylor, but if the Department of the Treasury determines that Susan M Taylor 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 Rohlfing & Kalagian, LLP, pursuant to the assignment executed by Susan M Taylor. 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). Any payments made shall be delivered to Marc V. Kalagian.
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 to any Social Security case, and this Stipulation should not be construed as a waiver of such reservation. Susan M. Taylor 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 Susan M Taylor'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 Susan M Taylor and/or Marc V. Kalagian including Law Offices of Rohlfing & Kalagian, LLP may have relating to EAJA attorney fees in connection with this action.
This award is without prejudice to the rights of Marc V. Kalagian and/or the Law Offices of Rohlfing & Kalagian, LLP 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,
CERTIFICATE OF SERVICE
FOR CASE NUMBER 2:13-CV-01260-JCM-CWH
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 March 4, 2014.
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.
ORDER AWARDING EQUAL ACCESS TO JUSTICE ACT ATTORNEY FEES PURSUANT TO 28 U.S.C. § 2412(d)
Based upon the parties' Stipulation for the Award and Payment of Equal Access to Justice Act Fees, Costs, and Expenses:
IT IS ORDERED that fees in the amount of $2,000.00 as authorized by 28 U.S.C. § 2412, be awarded subject to the terms of the Stipulation.