Horstkotter v. Kijakazi ( 2024 )

1 Marc V. Kalagian Attorney at Law: 4460 2 Law Offices of Lawrence D. Rohlfing, Inc., CPC 12631 East Imperial Highway Suite C-115 3 Santa Fe Springs, CA 90670 Tel.: (562) 868-5886 4 Fax: (562) 868-8868 E-mail: marc.kalagian@rksslaw.com 5 Leonard Stone 6 Attorney at Law: 5791 Shook & Stone 7 710 South 4th Street Las Vegas, NV 89101 8 Tel.: (702) 385-2220 Fax: (702) 384-0394 9 E-mail: CBrown@shookandstone.com 10 Attorneys for Plaintiff Tracy A. Horstkotter 11 12 UNITED STATES DISTRICT COURT 13 DISTRICT OF NEVADA 14 15 TRACY A. HORSTKOTTER, ) Case No.: 2:23-cv-01654-EJY ) 16 Plaintiff, ) STIPULATION AND PROPOSED ) ORDER FOR THE AWARD AND 17 vs. ) PAYMENT OF ATTORNEY FEES ) AND EXPENSES PURSUANT TO 18 MARTIN O'MALLEY,1 ) THE EQUAL ACCESS TO JUSTICE Commissioner of Social Security, ) ACT, 28 U.S.C. § 2412(d) AND 19 ) COSTS PURSUANT TO 28 U.S.C. § Defendant. ) 1920 20 ) ) 21 22 TO THE HONORABLE ELAYNA J. YOUCHAH, MAGISTRATE JUDGE 23 OF THE DISTRICT COURT: 24 25 1 Martin O’Malley, the new Commissioner of Social Security, should be substituted as the defendant in this suit per F.R.C.P. Rule 25(d). No further action 26 1 IT IS HEREBY STIPULATED, by and between the parties through their 2 undersigned counsel, subject to the approval of the Court, that Tracy A. 3 Horstkotter be awarded attorney fees in the amount of one thousand one hundred 4 dollars ($1,100.00) under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 5 2412(d), and costs in the amount of zero dollars ($0.00) under 28 U.S.C. § 1920. 6 This amount represents compensation for all legal services rendered on behalf of 7 Plaintiff by counsel in connection with this civil action, in accordance with 28 8 U.S.C. §§ 1920; 2412(d). 9 After the Court issues an order for EAJA fees to Horstkotter, the 10 government will consider the matter of Horstkotter's assignment of EAJA fees to 11 Marc Kalagian. The retainer agreement containing the assignment is attached as 12 exhibit 1. Pursuant to Astrue v. Ratliff, 130 S.Ct. 2521, 2529 (2010), the ability to 13 honor the assignment will depend on whether the fees are subject to any offset 14 allowed under the United States Department of the Treasury's Offset Program. 15 After the order for EAJA fees is entered, the government will determine whether 16 they are subject to any offset. 17 Fees shall be made payable to Horstkotter, but if the Department of the 18 Treasury determines that Horstkotter does not owe a federal debt, then the 19 government shall cause the payment of fees, expenses and costs to be made 20 directly to Law Offices of Lawrence D. Rohlfing, Inc., CPC, pursuant to the 21 assignment executed by Horstkotter.2 Any payments made shall be delivered to 22 Law Offices of Lawrence D. Rohlfing, Inc., CPC. 23 24 25 2 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 26 1 This stipulation constitutes a compromise settlement of Horstkotter's 2 request for EAJA attorney fees, and does not constitute an admission of liability on 3 the part of Defendant under the EAJA or otherwise. Payment of the agreed amount 4 shall constitute a complete release from, and bar to, any and all claims that 5 Horstkotter and/or Marc Kalagian including Law Offices of Lawrence D. Rohlfing, 6 Inc., CPC, may have relating to EAJA attorney fees in connection with this action. 7 This award is without prejudice to the rights of Marc Kalagian and/or the 8 Law Offices of Lawrence D. Rohlfing, Inc., CPC, to seek Social Security Act 9 attorney fees under 42 U.S.C. § 406(b), subject to the savings clause provisions of 10 the EAJA. 11 DATE: January 5, 2024 Respectfully submitted, 12 LAW OFFICES OF LAWRENCE D. ROHLFING, INC., CPC 13 /s/ Marc V. Kalagian 3 BY: __________________ 14 Marc V. Kalagian Attorney for plaintiff 15 TRACY A. HORSTKOTTER 16 DATED: January 5, 2024 JASON M. FRIERSON 17 United States Attorney 18 19 /s/ Edmund Jack Darcher 20 EDMUND JACK DARCHER Special Assistant United States Attorney 21 Attorneys for Defendant MARTIN O'MALLEY, Commissioner of Social 22 Security (Per e-mail authorization) 23 24 25 3 Counsel for the plaintiff attests that all other signatories listed, and on whose behalf the filing is submitted, concur in the filing’s content and have authorized the 26 1 ORDER 2 Approved and so ordered: 3 DATE: January 8, 2024 4 ___________________________________ THE HONORABLE ELAYNA J. YOUCHAH 5 UNITED STATES MAGISTRATE JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26