(SS) Motenko v. Commissioner of Social Security ( 2020 )

1 McGREGOR W. SCOTT United States Attorney 2 DEBORAH LEE STACHEL, CSBN 230138 3 Regional Chief Counsel, Region IX 4 Social Security Administration DONNA W. ANDERSON, PSBN 46355 5 Special Assistant United States Attorney 6 160 Spear Street, Suite 800 San Francisco, CA 94105-1545 7 Telephone: (415) 977-8930 8 Facsimile: (415) 744-0134 9 E-mail: Donna.W.Anderson@ssa.gov 10 Attorneys for Defendant 11 JESSE S. KAPLAN CSBN 103726 5441 Fair Oaks Bl. Ste. C-1 12 Carmichael, CA 95608 13 (916) 488-3030 (916) 489-9297 fax 14 Attorney for Plaintiff 15 16 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA 17 SACRAMENTO DIVISION 18 19 ANDREY MOTENKO, ) Case No. 2:19-cv-00004-EFB 20 ) Plaintiff, ) 21 ) STIPULATION AND [PROPOSED] 22 v. ) ORDER FOR THE AWARD AND 23 ) PAYMENT OF ATTORNEY FEES ANDREW SAUL, ) AND EXPENSES PURSUANT TO 24 Commissioner of Social Security, ) THE EQUAL ACCESS TO JUSTICE 25 ) ACT, 28 U.S.C. § 2412(d) Defendant. ) 26 ) 27 28 1 TO THE HONORABLE EDMUND F. BRENNAN, MAGISTRATE JUDGE 2 OF THE DISTRICT COURT: 3 IT IS HEREBY STIPULATED, by and between the parties through their 4 undersigned counsel, subject to the approval of the Court, that Andrey Motenko be 5 awarded attorney fees in the amount of THREE THOUSAND dollars ($3,000) 6 under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d). This amount 7 represents compensation for all legal services rendered on behalf of Plaintiff by 8 counsel in connection with this civil action, in accordance with 28 U.S.C. §§ 1920; 9 2412(d). 10 After the Court issues an order for EAJA fees to Andrey Motenko, the 11 government will consider the matter of Andrey Motenko’s assignment of EAJA fees 12 to Jesse Kaplan. The retainer agreement containing the assignment is attached 13 hereto as an exhibit. Pursuant to Astrue v. Ratliff, 130 S.Ct. 2521, 2529 (2010), the 14 15 ability to honor the assignment will depend on whether the fees are subject to any 16 offset allowed under the United States Department of the Treasury’s Offset 17 Program. After the order for EAJA fees is entered, the government will determine 18 whether they are subject to any offset. 19 Fees shall be made payable to Andrey Motenko, but if the Department of the 20 Treasury determines that Andrey Motenko does not owe a federal debt, then the 21 government shall cause the payment of fees, expenses and costs to be made directly 22 to Jesse Kaplan, pursuant to the assignment executed by Andrey Motenko.1 Any 23 payments made shall be delivered to Jesse Kaplan. 24 25 26 27 1 The parties do not stipulate whether counsel for the plaintiff has a cognizable lien 28 under federal law against the recovery of EAJA fees that survives the Treasury Offset Program. This stipulation constitutes a compromise settlement of Andrey Motenko’s * ll 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 Andrey 5 Motenko and/or Jesse Kaplan may have relating to EAJA attorney fees in 6 connection with this action. 7 This award is without prejudice to the rights of Jesse Kaplan to seek Social 8 5 Security Act attorney fees under 42 U.S.C. § 406(b), subject to the savings clause 1 provisions of the EAJA. Respectfully submitted, 12 Date: January 15, 2020 By: /s/Jesse S. Kaplan * JESSE S. KAPLAN ss Attorney for Plaintiff 14 (*By e-mail authorization on 01/15/20) || Dated: January 15, 2020 McGREGOR W. SCOTT 16 United States Attorney DEBORAH LEE STACHEL Regional Chief Counsel, Region IX Social Security Administration 19 /s/ Donna W. Anderson DONNA W. ANDERSON 21 Special Assistant United States Attorney Attorneys for Defendant 23 ORDER 24 The Stipulation is approved. The Clerk is directed to terminate ECF No. 18. 25 So Ordered. | Dated: January 16, 2020. LP “he £ Aa tet Wor 27 HON. EDMUND F. BRENNAN 28 United States Magistrate Judge