Smith v. O'Malley ( 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: Lstone@shookandstone.com 10 Attorneys for Plaintiff Daphne L. Smith 11 12 UNITED STATES DISTRICT COURT 13 DISTRICT OF NEVADA 14 15 DAPHNE L. SMITH, ) Case No.: 2:24-cv-00278-BNW ) 16 Plaintiff, ) STIPULATION AND PROPOSED ) ORDER FOR THE AWARD AND 17 vs. ) PAYMENT OF ATTORNEY FEES ) AND EXPENSES PURSUANT TO 18 MARTIN O'MALLEY, ) 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 BRENDA WEKSLER, MAGISTRATE JUDGE 23 OF THE DISTRICT COURT: 24 IT IS HEREBY STIPULATED, by and between the parties through their 25 undersigned counsel, subject to the approval of the Court, that Daphne L. Smith 26 (“Smith”) be awarded attorney fees in the amount of SEVENTY FIVE HUNDRED 1 dollars ($7,500.00) under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2 2412(d), and no costs in the amount of under 28 U.S.C. § 1920. This amount 3 represents compensation for all legal services rendered on behalf of Plaintiff by 4 counsel in connection with this civil action, in accordance with 28 U.S.C. §§ 1920; 5 2412(d). 6 After the Court issues an order for EAJA fees to Smith, the government will 7 consider the matter of Smith's assignment of EAJA fees to Marc Kalagian. The 8 retainer agreement containing the assignment is attached as exhibit 1. Pursuant to 9 Astrue v. Ratliff, 130 S.Ct. 2521, 2529 (2010), the ability to honor the assignment 10 will depend on whether the fees are subject to any offset allowed under the United 11 States Department of the Treasury's Offset Program. After the order for EAJA fees 12 is entered, the government will determine whether they are subject to any offset. 13 Fees shall be made payable to Smith, but if the Department of the Treasury 14 determines that Smith does not owe a federal debt, then the government shall cause 15 the payment of fees, expenses and costs to be made directly to Law Offices of 16 Lawrence D. Rohlfing, Inc., CPC, pursuant to the assignment executed by Smith.1 17 Any payments made shall be delivered to Law Offices of Lawrence D. Rohlfing, 18 Inc., CPC. Counsel agrees that any payment of costs may be made either by 19 electronic fund transfer (ETF) or by check. 20 This stipulation constitutes a compromise settlement of Smith's request for 21 EAJA attorney fees, and does not constitute an admission of liability on the part of 22 Defendant under the EAJA or otherwise. Payment of the agreed amount shall 23 constitute a complete release from, and bar to, any and all claims that Smith and/or 24 25 1 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 || Marc Kalagian including Law Offices of Lawrence D. Rohlfing, Inc., CPC, may 2 || have relating to EAJA attorney fees in connection with this action. 3 This award 1s without prejudice to the rights of Marc Kalagian and/or the 4 || Law Offices of Lawrence D. Rohlfing, Inc., CPC, to seek Social Security Act 5 || attorney fees under 42 U.S.C. § 406(b), subject to the savings clause provisions of 6 || the EAJA. 7 || DATE: October 9, 2024 Respectfully submitted, 8 LAW OFFICES OF LAWRENCE D. ROHLFING, INC., CPC 9 /s/ MareV. Kalagian 1 BY: 0 Marc V. Kalagian Attorney for plaintiff 11 DAPHNE L. SMITH 12 B DATE:October 9, 2024 JASON M. FRIERSON United States Attorney 14 16 LARS J. NELSON Special Assistant United States Attorney 17 Attorneys for Defendant MARTIN O'MALLEY, Commissioner of Social 18 Security (Per e-mail authorization) 19 ORDER 20 Approved and so ordered: 21 DATE: October 10, 2024 22 LZ gm Lea Are fat, 23 THE HONORABLE BRENDA WEKSLER UNITED STATES MAGISTRATE JUDGE 24 25 26 1 DECLARATION OF MARC V. KALAGIAN 2 I, Marc V. Kalagian, declare as follows: 3 1. I am an attorney at law duly admitted to practice before this Court in this 4 case. I represent Daphne L. Smith in this action. I make this declaration 5 of my own knowledge and belief. 6 2. I attach as exhibit 1 a true and correct copy of the retainer agreement with 7 Daphne L. Smith containing an assignment of the EAJA fees. 8 3. I attach as exhibit 2 a true and correct copy of the itemization of time in 9 this matter. 10 I declare under penalty of perjury that the foregoing is true and correct to the 11 best of my knowledge and belief. 12 Executed this October 9, 2024, at Santa Fe Springs, California. 13 14 /s/ Marc V. Kalagian 15 _________________________ Marc V. Kalagian 16 17 18 19 20 21 22 23 24 25 26 1 PROOF OF SERVICE 2 STATEOFCALIFORNIA,COUNTYOFLOSANGELES 3 I am employed in the county of Los Angeles, State of California. I am over 4 the age of 18 and not a party to the within action. My business address is 12631 5 East Imperial Highway, Suite C-115, Santa Fe Springs, California 90670. 6 On this day of October 9, 2024, I served the foregoing document described 7 as STIPULATION FOR THE AWARD AND PAYMENT OF ATTORNEY FEES 8 AND EXPENSES PURSUANT TO THE EQUAL ACCESS TO JUSTICE ACT, 9 28 U.S.C. § 2412(d) AND COSTS PURSUANT TO 28 U.S.C. § 1920 on the 10 interested parties in this action by placing a true copy thereof enclosed in a sealed 11 envelope addressed as follows: 12 Ms. Daphne L. Smith 6310 Explorer Dr. 13 Las Vegas, NV 89103 14 I caused such envelope with postage thereon fully prepaid to be placed in the 15 United States mail at Santa Fe Springs, California. 16 I declare under penalty of perjury under the laws of the State of California 17 that the above is true and correct. 18 I declare that I am employed in the office of a member of this court at whose 19 direction the service was made. 20 Marc V. Kalagian ___ /s/ Marc V. Kalagian___________ 21 TYPE OR PRINT NAME SIGNATURE 22 23 24 25 26 1 CERTIFICATE OF SERVICE FOR CASE NUMBER 2:24-CV-00278-BNW 2 I hereby certify that I electronically filed the foregoing with the Clerk of the 3 4 Court for this court by using the CM/ECF system on October 9, 2024. 5 I certify that all participants in the case are registered CM/ECF users and 6 that service will be accomplished by the CM/ECF system, except the plaintiff 7 served herewith by mail. 8 9 /s/ Marc V. Kalagian _______________________________ 10 Marc V. Kalagian 11 Attorneys for Plaintiff 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26