Koenen v. Commissioner of Social Security ( 2021 )

1 U.S. DISTRICT JUDGE THOMAS S. ZILLY 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 9 TACOMA DIVISION 10 KEITH KOENEN, Civil No. 3:19-cv-05110-TSZ 11 Plaintiff, 12 vs. STIPULATED RESPONSE TO MOTION FOR FEES 13 COMMISSIONER OF SOCIAL SECURITY, 14 Defendant. Note on Motion Calendar: November 1, 2021. 15 Plaintiff seeks an award of attorney fees under the (EAJA), 28 U.S.C. § 2412 et seq. After 16 Plaintiff filed the present motion, the parties engaged in good faith negotiations. Defendant, the 17 Acting Commissioner of Social Security (Commissioner), by her undersigned counsel, and 18 Plaintiff, by his counsels, Elie Halpern, now agree and stipulate as follows: 19 1. Plaintiff was the prevailing party in this matter; 20 2. Plaintiff was an individual whose net worth did not exceed $2,000,000 at the time the civil 21 action was filed; 22 3. The position of the Commissioner was not substantially justified; 23 4. An award of fees is not unjust; 24 5. An award of $6,132.36 in fees to Jeff Baird constitutes reasonable attorney fees in this matter; Page 1 STIPULATED RESPONSE TO MOTION Office of the General Counsel 1 6. An award of $7.28 constitutes reasonable expenses in this matter; and 2 7. Payment of these amounts shall constitute a complete release from and bar to any and all 3 claims Plaintiff may have relating to EAJA fees in connection with this action. The parties 4 further agree that the EAJA award is without prejudice to the right of Plaintiff’s attorney to 5 seek attorney fees pursuant to Social Security Act § 206(b), 42 U.S.C. § 406(b), subject to 6 the offset provisions of the EAJA. See 28 U.S.C. § 2412(c)(1) (2006). 7 8. Under Astrue v. Ratliff, 130 S. Ct. 2521, 2528-29 (2010), EAJA fees awarded by this Court 8 belong to the Plaintiff and are subject to offset under the Treasury Offset Program (31 U.S.C. 9 §3716(c)(3)(B) (2006)). Any EAJA fees should therefore be awarded to Plaintiff and not to 10 Plaintiff’ s attorney. If, after receiving the Court’ s EAJA fee order, the Commissioner (1) 11 determines that Plaintiff has assigned his right to EAJA fees to his attorney; (2) determines 12 that Plaintiff does not owe a debt that is subject to offset under the Treasury Offset Program, 13 and (3) agrees to waive the requirements of the Anti-Assignment Act, then the EAJA fees 14 will be made payable to Plaintiff’s attorney via check or electronic fund transfer. However, 15 if there is a debt owed under the Treasury Offset Program, the Commissioner cannot agree 16 to waive the requirements of the Anti-Assignment Act, and the remaining EAJA fees after 17 offset will be paid by a check or electronic fund transfer to Plaintiff but delivered to 18 Plaintiff’s attorney. 19 DATED this 1st day of November 2021. 20 21 22 23 24 Page 2 STIPULATED RESPONSE TO MOTION Office of the General Counsel 1 Respectfully submitted, 2 s/ Thomas M. Elsberry 3 THOMAS M. ELSBERRY Special Assistant United States Attorney 4 Office of the General Counsel Social Security Administration 5 701 Fifth Avenue, Suite 2900 M/S 221A Seattle, WA 98104-7075 6 Telephone: (206) 615-2112 Fax: (206) 615-2531 7 thomas.elsberry@ssa.gov 8 DATED this 1st day of November 2021. 9 s/ Thomas M. Elsberry for 10 ELIE HALPERN Attorney for Plaintiff 11 (PER AUTHORIZATION) 12 13 CERTIFICATE OF SERVICE 14 I hereby certify that the foregoing Stipulated Response to Motion for Fees was filed with 15 the Clerk of the Court on November 1, 2021, using the CM/ECF system which will send 16 notification of such filing to the following: Elie Halpern. 17 s/ Thomas M. Elsberry 18 THOMAS M. ELSBERRY Special Assistant United States Attorney 19 Office of the General Counsel 20 21 22 23 24 Page 3 STIPULATED RESPONSE TO MOTION Office of the General Counsel 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 9 TACOMA DIVISION 10 KEITH KOENEN, Civil No. 3:19-CV-05110-TSZ 11 Plaintiff, 12 vs. ORDER 13 COMMISSIONER OF SOCIAL SECURITY, 14 Defendant. 15 For the reasons set forth in the parties’ stipulated motion, docket no. 27, for attorney fees 16 under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412, et seq., and good cause 17 shown, IT IS HEREBY ORDERED AS FOLLOWS: 18 1. Plaintiff is here by awarded $6,132.36 in fees to Jeff Baird and $7.28 in expenses 19 under the EAJA. 20 2. Under Astrue v. Ratliff, 130 S. Ct. 2521, 2528-29 (2010), EAJA fees awarded by this 21 Court belong to the Plaintiff and are subject to offset under the Treasury Offset Program 22 (31 U.S.C. § 3716(c)(3)(B) (2006)). Any EAJA fees should therefore be awarded to 23 Plaintiff and not to Plaintiff’ s attorney. If, after receiving the Court’s EAJA fee order, 24 the Commissioner (1) determines that Plaintiff has assigned his right to EAJA fees to 1 his attorney; (2) determines that Plaintiff does not owe a debt that is subject to offset 2 under the Treasury Offset Program, and (3) agrees to waive the requirements of the 3 Anti-Assignment Act, then the EAJA fees will be made payable to Plaintiff’s attorney 4 via check or electronic fund transfer. 5 3. However, if there is a debt owed under the Treasury Offset Program, the Commissioner 6 cannot agree to waive the requirements of the Anti-Assignment Act, and the remaining 7 EAJA fees after offset will be paid via check or electronic fund transfer to Plaintiff but 8 delivered to Plaintiff’s attorney. 9 10 DATED this 8th day of November, 2021. A 11 12 ____________________________________ Thomas S. Zilly 13 United States District Judge 14 15 Presented by: 16 s/ Thomas M. Elsberry THOMAS M. ELSBERRY 17 Special Assistant United States Attorney Office of the General Counsel 18 Social Security Administration 701 Fifth Avenue, Suite 2900 M/S 221A 19 Seattle, WA 98104-7075 Telephone: (206) 615-2112 20 Fax: (206) 615-2531 thomas.elsberry@ssa.gov 21 22 23 24