Avila v. Saul

Opinion

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 Gerald M. Welt 6 Attorney at Law: 1575 411 E. Bonneville Avenue, #505 7 Las Vegas, NV 89101 Tel.: (702) 382-2030 8 Fax: (702) 684-5157 E-mail: gmwesq@weltlaw.com; kwp@weltlaw.com 9 Attorneys for Plaintiff 10 Jose N. Avila 11 UNITED STATES DISTRICT COURT 12 DISTRICT OF NEVADA 13 14 JOSE N. AVILA, ) Case No.: 2:21-cv-00546-VCF 15 ) Plaintiff, ) STIPULATION AND PROPOSED 16 ) ORDER FOR THE AWARD AND vs. ) PAYMENT OF ATTORNEY FEES 17 ) PURSUANT TO THE EQUAL KILOLO KIJAKAZI, ) ACCESS TO JUSTICE ACT, 28 U.S.C. 18 Acting Commissioner of Social ) § 2412(d) Security, ) 19 ) Defendant. ) 20 ) 21 TO THE HONORABLE CAM FERENBACH, MAGISTRATE JUDGE OF 22 THE DISTRICT COURT: 23 IT IS HEREBY STIPULATED, by and between the parties through their 24 undersigned counsel, subject to the approval of the Court, that Jose N. Avila be 25 awarded attorney fees in the amount of TWO THOUSAND SIX HUNDRED - 26 1 THIRTEEN dollars AND FORTY-FIVE cents ($2,613.45) under the Equal Access 2 to Justice Act (EAJA), 28 U.S.C. § 2412(d). 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 Jose N. Avila, the 6 government will consider the matter of Jose N. Avila's assignment of EAJA fees to 7 Marc Kalagian. The retainer agreement containing the assignment is attached as 8 exhibit 1. Pursuant to Astrue v. Ratliff, 130 S.Ct. 2521, 2529 (2010), the ability to 9 honor the assignment will depend on whether the fees are subject to any offset 10 allowed under the United States Department of the Treasury's Offset Program. 11 After the order for EAJA fees is entered, the government will determine whether 12 they are subject to any offset. 13 Fees shall be made payable to Jose N. Avila, but if the Department of the 14 Treasury determines that Jose N. Avila does not owe a federal debt, then the 15 government shall cause the payment of fees, expenses and costs to be made 16 directly to Law Offices of Lawrence D. Rohlfing, pursuant to the assignment 17 executed by Jose N. Avila.1 Any payments made shall be delivered to Marc 18 Kalagian.

19 This stipulation constitutes a compromise settlement of Jose N. Avila's 20 request for EAJA attorney fees, and does not constitute an admission of liability on 21 the part of Defendant under the EAJA or otherwise. Payment of the agreed amount 22 shall constitute a complete release from, and bar to, any and all claims that Jose N. 23 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 || Avila and/or Marc Kalagian including Law Offices of Lawrence D. Rohlfing may 2 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 to seek Social Security Act attorney fees 5 under 42 U.S.C. § 406(b), subject to the savings clause provisions of the EAJA. 6 || DATE: February 7, 2022 Respectfully submitted, 7 LAW OFFICES OF LAWRENCE D. ROHLFING INC., CPC 8 □□□ MareV. Kalagian BY: 9 Marc V. Kalagian I Attorney for plaintiff 0 JOSE N. AVILA 11 DATE: February 7, 2022 CHRISTOPHER CHIOU Acting United States Attorney 13 14 /S/ Uanreelo lt. Ularme 15 MARCELO N. ILLARMO 16 Special Assistant United States Attorney Attorneys for Defendant 17 KILOLO KIJAKAZI, Acting Commissioner of Social 18 Security (Per e-mail authorization)

19 20 21 ORDER 22 Approved and so ordered:

24 THE HONORABLE CAM FERENBACH 25 UNITED STATES MAGISTRATE JUDGE 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 February 8, 2022, 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. Jose N. Avila 4505 Bristol Manner Dr. 13 Las Vegas, NV 89108 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 Vivian Vasquez ___ /s/ _Vivian Vasquez__________ 21 TYPE OR PRINT NAME SIGNATURE 22 23 24 25 26 1 CERTIFICATE OF SERVICE FOR CASE NUMBER 2:21-CV-00546-VCF 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 February 8, 2022. 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 SOCIAL SECURITY REPRESENTATION AGREEMENT This agreement was made on October 23, 2020, by and between the Law Offices of Rohlfing & Kalagian, LLP referred to as attomey and Mr. Jose N. Avila, $.S.N.. 1173, herein referred to as Claimant. 1. Claimant employs and appoints Law Offices of Rohlfing & Kalagian, LLP to represent Claimant as Mr. Jose N. Avila’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 shall 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 currently $6,006.00, 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 arecovery, Attomey = will receive no fee. This matter is subject expedited fee approval except as stated in 43. .3. The provisions of J 2 only apply to dispositions at or before a first hearing decision from an ALJ. The fee for successfui 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 Attomey. □□ 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 Aitorney’s opinion only. . 8. This Agreement comprises the entire contract between Attomey and Claimant. The laws of the State of Califormia 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 attomey 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 □□ all referral or association fees to prior or referring attorneys or bar referral service. 11. Fhe receipt from Claimant of none _is her knowledged by attorney to be □ placed in trust ahd usey for costs, □□ see ito N. Avila Law Offices of Rohlfing & Kalagian, LLP