Smith v. O'Malley

Opinion

Marc V. Kalagian Attorney at Law: 4460 Law Offices of Lawrence D. Rohlfing, Inc., CPC 12631 East Imperial Highway Suite C-115 Santa Fe Springs, CA 90670 Tel.: (562) 868-5886 Fax: (562) 868-8868 E-mail: marc.kalagian@rksslaw.com Leonard Stone Attorney at Law: 5791 Shook & Stone 710 South 4th Street Las Vegas, NV 89101 Tel.: (702) 385-2220 Fax: (702) 384-0394 E-mail: Lstone@shookandstone.com Attorneys for Plaintiff Daphne L. Smith DAPHNE L. SMITH, ) Case No.: 2:24-cv-00278-BNW ) Plaintiff, ) STIPULATION AND PROPOSED ) ORDER FOR THE AWARD AND vs. ) PAYMENT OF ATTORNEY FEES ) AND EXPENSES PURSUANT TO MARTIN O'MALLEY, ) THE EQUAL ACCESS TO JUSTICE Commissioner of Social Security, ) ACT, 28 U.S.C. § 2412(d) AND ) COSTS PURSUANT TO 28 U.S.C. § Defendant. ) 1920 ) ) OF THE DISTRICT COURT: IT IS HEREBY STIPULATED, by and between the parties through their undersigned counsel, subject to the approval of the Court, that Daphne L. Smith (“Smith”) be awarded attorney fees in the amount of SEVENTY FIVE HUNDRED dollars ($7,500.00) under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d), and no costs in the amount of under 28 U.S.C. § 1920. This amount represents compensation for all legal services rendered on behalf of Plaintiff by counsel in connection with this civil action, in accordance with 28 U.S.C. §§ 1920; 2412(d). After the Court issues an order for EAJA fees to Smith, the government will consider the matter of Smith's assignment of EAJA fees to Marc Kalagian. The retainer agreement containing the assignment is attached as exhibit 1. Pursuant to Astrue v. Ratliff, 130 S.Ct. 2521, 2529 (2010), the ability to honor the assignment will depend on whether the fees are subject to any offset allowed under the United States Department of the Treasury's Offset Program. After the order for EAJA fees is entered, the government will determine whether they are subject to any offset. Fees shall be made payable to Smith, but if the Department of the Treasury determines that Smith does not owe a federal debt, then the government shall cause the payment of fees, expenses and costs to be made directly to Law Offices of Lawrence D. Rohlfing, Inc., CPC, pursuant to the assignment executed by Smith.1 Any payments made shall be delivered to Law Offices of Lawrence D. Rohlfing, Inc., CPC. Counsel agrees that any payment of costs may be made either by

electronic fund transfer (ETF) or by check. This stipulation constitutes a compromise settlement of Smith's request for EAJA attorney fees, and does not constitute an admission of liability on the part of Defendant under the EAJA or otherwise. Payment of the agreed amount shall constitute a complete release from, and bar to, any and all claims that Smith and/or 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 Marc Kalagian including Law Offices of Lawrence D. Rohlfing, Inc., CPC, may have relating to EAJA attorney fees in connection with this action. This award 1s without prejudice to the rights of Marc Kalagian and/or the Law Offices of Lawrence D. Rohlfing, Inc., CPC, to seek Social Security Act attorney fees under 42 U.S.C. § 406(b), subject to the savings clause provisions of the EAJA. DATE: October 9, 2024 Respectfully submitted, LAW OFFICES OF LAWRENCE D. ROHLFING, INC., CPC /s/ MareV. Kalagian BY: Marc V. Kalagian Attorney for plaintiff B DATE:October 9, 2024 JASON M. FRIERSON United States Attorney

Special Assistant United States Attorney Attorneys for Defendant MARTIN O'MALLEY, Commissioner of Social Security (Per e-mail authorization) ORDER Approved and so ordered: DATE: October 10, 2024 LZ gm Lea Are fat, THE HONORABLE BRENDA WEKSLER UNITED STATES MAGISTRATE JUDGE

I, Marc V. Kalagian, declare as follows: 1. I am an attorney at law duly admitted to practice before this Court in this case. I represent Daphne L. Smith in this action. I make this declaration of my own knowledge and belief. 2. I attach as exhibit 1 a true and correct copy of the retainer agreement with Daphne L. Smith containing an assignment of the EAJA fees. 3. I attach as exhibit 2 a true and correct copy of the itemization of time in this matter. I declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge and belief. Executed this October 9, 2024, at Santa Fe Springs, California. /s/ Marc V. Kalagian _________________________ Marc V. Kalagian I am employed in the county of Los Angeles, State of California. I am over the age of 18 and not a party to the within action. My business address is 12631 East Imperial Highway, Suite C-115, Santa Fe Springs, California 90670. On this day of October 9, 2024, I served the foregoing document described as STIPULATION FOR THE AWARD AND PAYMENT OF ATTORNEY FEES 28 U.S.C. § 2412(d) AND COSTS PURSUANT TO 28 U.S.C. § 1920 on the interested parties in this action by placing a true copy thereof enclosed in a sealed envelope addressed as follows: Ms. Daphne L. Smith 6310 Explorer Dr. Las Vegas, NV 89103 I caused such envelope with postage thereon fully prepaid to be placed in the United States mail at Santa Fe Springs, California. I declare under penalty of perjury under the laws of the State of California that the above is true and correct. I declare that I am employed in the office of a member of this court at whose direction the service was made. Marc V. Kalagian ___ /s/ Marc V. Kalagian___________ FOR CASE NUMBER 2:24-CV-00278-BNW I hereby certify that I electronically filed the foregoing with the Clerk of the Court for this court by using the CM/ECF system on October 9, 2024. I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the CM/ECF system, except the plaintiff served herewith by mail. /s/ Marc V. Kalagian _______________________________ Marc V. Kalagian Attorneys for Plaintiff