Carness 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 Larry Eric Carness 11 12 UNITED STATES DISTRICT COURT 13 DISTRICT OF NEVADA 14 15 LARRY ERIC CARNESS, ) Case No.: 2:24-cv-00089-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 Larry Eric Carness 26 (“Carness”) be awarded attorney fees in the amount of SEVENTY TWO 1 HUNDRED dollars ($7,200.00) under the Equal Access to Justice Act (EAJA), 28 2 U.S.C. § 2412(d), and no costs under 28 U.S.C. § 1920. This amount represents 3 compensation for all legal services rendered on behalf of Plaintiff by counsel in 4 connection with this civil action, in accordance with 28 U.S.C. §§ 1920; 2412(d). 5 After the Court issues an order for EAJA fees to Carness, the government 6 will consider the matter of Carness's assignment of EAJA fees to Marc Kalagian. 7 The retainer agreement containing the assignment is attached as exhibit 1. 8 Pursuant to Astrue v. Ratliff, 130 S.Ct. 2521, 2529 (2010), the ability to honor the 9 assignment will depend on whether the fees are subject to any offset allowed under 10 the United States Department of the Treasury's Offset Program. After the order for 11 EAJA fees is entered, the government will determine whether they are subject to 12 any offset. 13 Fees shall be made payable to Carness, but if the Department of the 14 Treasury determines that Carness does not owe a federal debt, then the government 15 shall cause the payment of fees, expenses and costs to be made directly to Law 16 Offices of Lawrence D. Rohlfing, Inc., CPC, pursuant to the assignment executed 17 by Carness.1 Any payments made shall be delivered to Law Offices of Lawrence 18 D. Rohlfing, Inc., CPC. Counsel agrees that any payment of costs may be made 19 either by electronic fund transfer (ETF) or by check. 20 This stipulation constitutes a compromise settlement of Carness's request 21 for EAJA attorney fees, and does not constitute an admission of liability on the part 22 of 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 Carness 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 || and/or Marc Kalagian including Law Offices of Lawrence D. Rohlfing, Inc., CPC, 2 ||may have relating to EAJA attorney fees in connection with this action. 3 This award is 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 15, 2024 Respectfully submitted, 8 LAW OFFICES OF LAWRENCE D. ROHLFING, INC., CPC 9 /S| WareV. Kalagian I BY: 0 Marc V. Kalagian Attorney for plaintiff 1 LARRY ERIC CARNESS 12 DATE:October 15, 2024 JASON M. FRIERSON United States Attorney 14 16 JEFFREY E. STAPLES Special Assistant United States Attorney 17 Attorneys for Defendant MARTIN O'MALLEY, Commissioner of Social 18 Security (Per e-mail authorization) 19 20 ORDER 21 Approved and so ordered: 22 || DATE: 10/16/2024 23 Li gum le WE Ean, T ONORABLE BRENDA WEKSLER 24 UNITED STATES MAGISTRATE JUDGE 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 Larry Eric Carness in this action. I make this 5 declaration of my own knowledge and belief. 6 2. I attach as exhibit 1 a true and correct copy of the retainer agreement with 7 Larry Eric Carness 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 15, 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 STATE OF CALIFORNIA, COUNTY OF LOS ANGELES 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 15, 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 Mr. Larry Eric Carness 6500 W Charleston Blvd, Unit 515 13 Las Vegas, NV 89146 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-00089-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 15, 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 Larry Carness Social Security case Responsible Attorney: Marc V. Kalagian (MVK) at $252.72 Associate Attorney: Monica Perales (MP) at $252.72 Paralegal: Enedina Perez (EP), Evelyn Gil (EG) at $179 DATE: TIME: PLGL: DESCRIPTION: receipt of IFP forms, review for IFP eligibility and 11-Jan-24 0.5 EP preparation of related forms for filing 5-Jan-24 0.2 EP 2nd request for fee waiver and related forms 22-Jan-24 0.2 EP preparation of client letter with DC status receipt of transcript; preparation of memorandum to 17-Apr-24 0.7 EP MP/MVK regarding same and notice of appearance 19-Apr-24 0.3 EP preparation of client letter with DC status 29-Feb-24 0.05 EP receipt of order granting extension 25-Jul-24 0.05 EP receipt and processing of Defendant's brief 9-Aug-24 0.3 EP preparation of client letter with DC status 17-Sep-24 0.05 EP receipt of remand order and judgment and processing 24-Sep-24 0.3 EG preparation of letter to client re: results 1-Oct-24 0.3 EP preparation of letter to AC re: results Subtotals 2.95 $528.05 DATE: TIME: ATTY: DESCRIPTION: 10-Dec-23 0.9 MP review of ALJ unfavorable decision Conversation with MP regarding taking case to District 21-Dec-23 0.3 MVK Court 21-Dec-23 0.5 MP preparation of letter to client regarding District Court preparation of fee waiver questionnaire and fee waiver 21-Dec-23 0.2 MP form preparation of complaint to review the final decision of 10-Jan-24 1.2 MP the Commissioner 10-Jan-24 0.3 MVK review and edit of the complaint 17-May-24 0.2 MVK preparation of plaintiff's extension request 17-May-24 0.05 MVK preparation of email to defendant re: plaintiffs extension 17-May-24 0.05 MVK receipt of email from defendant re: plaintiff's extension review of the Administrative Record in preparation of 22-Jun-24 2.7 MP Plaintiff's brief (1,088 pages), research issues, and exclusions of issues 22-Jun-24 3.9 MP preparation of Plaintiff's brief review of the Administrative Record in preparation of 24-Jun-24 3.3 MP Plaintiff's brief (1,088 pages), research issues, and exclusions of issues 24-Jun-24 4.4 MP preparation of Plaintiff's brief 24-Jun-24 0.5 MVK review and edit of Plaintiff's brief 8-Aug-24 5.5 MP review defendant's brief and preparation of reply 8-Aug-24 0.3 MVK review and edit of Plaintiff's reply 18-Sep-24 0.7 MVK review of remand order and judgment 11-Oct-24 0.3 MVK letter to client re EAJA preparation of letter to regional counsel regarding EAJA 11-Oct-24 0.7 MVK fees and costs 0.5 MVK Preparation of EAJA stip Subtotals 26.50 $6,681.69 SORENSON V. MINK CALCULATIONS 2023 1.90 $244.62 $464.78 2024 24.60 $252.72 $6,216.91 TOTAL TIME 29.45 LODESTAR $7,209.74 SOCIAL SECURITY REPRESENTATION AGREEMENT This agreement was made on December 5, 2022, by and between the Law Offices of Lawrence D. Rohlfing, Inc., CPC referred to as attorney and Mr. Larry Eric Carness, S8.S.N. 3304, herein referred to as Claimant. 1. Claimant employs and appoints Law Offices of Lawrence D. Rohlfing, Inc., CPC to represent Claimant as Mr. Larry Eric Carness’s Attorneys at law in a Social Security claim regarding a claim for disability benefits and empowers Attorney to take such action as may be advisable in the judgment of Attorney, including the taking of judicial review. 2. In consideration of the services to be performed by the Attorney and it being the desire of the Claimant to compensate Attorney out of the proceeds shali receive 25% of the past due benefits awarded by the Social Security Administration to the claimant or such amount as the Commissioner may designate under 42 U.S.C. § 406(a)(2)(A) which is $37,200.00 as of November 30, 2022, whichever is smaller, upon successful completion of the case at or before a first hearing decision from an ALJ. If the Claimant and the Attorney are unsuccessful in obtaining a recovery, Attorney will receive no fee. This matter is subject expedited fee approval except as stated in (3. 3. The provisions of { 2 only apply to dispositions at or before a first hearing decision from an ALJ. The fee for successful prosecution of this matter is 25% of the past due benefits awarded upon reversal of any unfavorable ALJ decision for work before the Social Security Administration. Attorney shall petition for authorization to charge this fee in compliance with the Social Security Act for all time whether exclusively or not committed to such representation. 4. If this matter requires judicial review of any adverse decision of the Social Security Administration, the fee for successful prosecution of this matter is a separate 25% of the past due benefits awarded upon reversal of any unfavorable ALJ decision for work before the court. Attorney shall seek compensation under the Equal Access to Justice Act and such amount shall credit to the client for fees otherwise payable for that particular work. Client shall endorse such documents as are needed to pay Attorney any amounts under the EAJA and assigns such fee awards to Attorney. 5. Claimant shall pay all costs, including, but not limited to costs for medical reports, filing fees, and consultations and examinations by experts, in connection with the cause of action. 6. Attorney shall be entitled to a reasonable fee; notwithstanding the Claimant may discharge or obtain the substitution of attorneys before Attorney has completed the services for which he is hereby employed. 7. Attorney has made no warranties as to the successful termination of the cause of action, and all expressions made by Attorney relative thereto are matters of Attorney’s opinion only. 8. This Agreement comprises the entire contract between Attorney and Claimant. The laws of the State of California shall govern the construction and interpretation of this Agreement except that federal law governs the approval of fees by the Commissioner or a federal court. Business and Professions Code § 6147(a)(4) states “that the fee is not set by law but is negotiable between attorney and client.” 9. Attorney agrees to perform all the services herein mentioned for the compensation provided above. 10. Client authorizes attorney to pay out of attorney fees and without cost to client any and ail referral or association fees to James T. Crytzer not to exceed 25% of fees and without adding to any fees owed by Claimant. 11. The receipt from Claimant of none _is hereby acknowledged by attorney to be placed in trust and used for costs. It is so agreed. C3 Wonca Perales Mr. L Eric Carness Law Offices of Lawrence D. Rohlfing, Inc., CPC Monica Perales Ware. Kalagian