Timothy Lee Avist v. United States District Court for the District of Nevada

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 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 Timothy Lee Avist 11

14 15 TIMOTHY LEE AVIST, ) Case No.: 2:25-cv-01613-MDC ) 16 Plaintiff, ) AMENDED STIPULATION AND ) PROPOSED ORDER FOR THE 17 vs. ) AWARD AND PAYMENT OF ) ATTORNEY FEES AND EXPENSES Commissioner of Social Security, ) ACCESS TO JUSTICE ACT, 28 U.S.C. 19 ) § 2412(d) AND COSTS PURSUANT Defendant. ) TO 28 U.S.C. §§ 1920; 2412; 20 ) DECLARATION OF MARC V. ) KALAGIAN 21 )

22 TO THE HONORABLE MAXIMILIANO D. COUVILLIER, 23 MAGISTRATE JUDGE OF THE UNITED STATES 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 Timothy Lee Avist 26 1 (“Avist”) be awarded attorney fees in the amount of five thousand and six hundred 2 dollars ($5,600.00) and no expenses under the Equal Access to Justice Act (EAJA), 3 28 U.S.C. § 2412(d), and no costs under 28 U.S.C. §§ 1920; 2412. This amount 4 represents compensation for all legal services rendered on behalf of Plaintiff by 5 counsel in connection with this civil action, in accordance with 28 U.S.C. §§ 1920; 6 2412(d). 7 Attorneys' fees awarded under the EAJA must be reasonable, but it is for the 8 district court to determine what fee is reasonable. Nerio Mejia v. O'Malley, 120 9 F.4th 1360, 1363-1364 (9th Cir. 2024). In this matter the parties agree that 10 Plaintiff is the prevailing party, that Plaintiff is eligible to receive an award of the 11 requested fees and costs, that the decision of the ALJ was not substantially 12 justified, and no special circumstances make an award unjust. The Court should 13 also consider the results achieved. Remand was obtained through voluntary 14 consent and agreement of the parties. Through Counsel for the parties efforts, 15 litigation was avoided in this matter and the time expended was reasonable. 16 Therefore, Avist is entitled to reasonable attorneys’ fees based on the hours 17 reasonably expended (attached hereto as Exhibit 2) multiplied by the prevailing 18 rate as set by the Ninth Circuit Court of Appeals1 and as compared to other EAJA

19 awards at the district court level within the Ninth Circuit. See Ortiz v. Comm'r of 20 Soc. Sec., No. 2:21-cv-01563 KJM DMC, 2025 LX 334420 (E.D. Cal. Aug. 18, 21 2025) (granting EAJA fees of $11.036.00); Costa v. Comm'r of SSA, 690 F.3d 22 1132 *1133-37 (9th Cir. 2012) ("Many district courts have noted that twenty to 23 forty hours is the range most often requested and granted in social security cases."). 24 The hours performed in Avist’s case total 23.3. 25

26 1 1 After the Court issues an order for EAJA fees to Avist, the government will 2 consider the matter of Avist's assignment of EAJA fees to Marc Kalagian. The 3 retainer agreement containing the assignment is attached as exhibit 1. Pursuant to 4 Astrue v. Ratliff, 130 S.Ct. 2521, 2529 (2010), the ability to honor the assignment 5 will depend on whether the fees are subject to any offset allowed under the United 6 States Department of the Treasury's Offset Program. After the order for EAJA fees 7 is entered, the government will determine whether they are subject to any offset. 8 Fees shall be made payable to Avist, but if the Department of the Treasury 9 determines that Avist does not owe a federal debt, then the government shall cause 10 the payment of fees, expenses and costs to be made directly to Law Offices of 11 Lawrence D. Rohlfing, Inc., CPC, pursuant to the assignment executed by Avist.2 12 Any payments made shall be delivered to Law Offices of Lawrence D. Rohlfing, 13 Inc., CPC. Counsel agrees that any payment of costs may be made either by 14 electronic fund transfer (EFT) or by check. 15 This stipulation constitutes a compromise settlement of Avist's request for 16 EAJA attorney fees, and does not constitute an admission of liability on the part of 17 Defendant under the EAJA or otherwise. Payment of the agreed amount shall 18 constitute a complete release from, and bar to, any and all claims that Avist and/or

19 Marc Kalagian including Law Offices of Lawrence D. Rohlfing, Inc., CPC, may 20 have relating to EAJA attorney fees in connection with this action. 21 This award is without prejudice to the rights of Marc Kalagian and/or the 22 Law Offices of Lawrence D. Rohlfing, Inc., CPC, to seek Social Security Act 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 || attorney fees under 42 U.S.C. § 406(b), subject to the savings clause provisions of 3 We certify that Artificial Intelligence was not used to prepare the foregoing 4 || document. 5 || DATE: April 14,2026 Respectfully submitted, 6 LAW OFFICES OF LAWRENCE D. ROHLFING, INC., CPC 7 /s| Mare. Kalagian * BY: 8 Marc V. Kalagian Attorney for plaintiff 10 || DATED: April 14, 2026 SIGAL CHATTAH First Assistant United States Attorney

Special Assistant United States Attorney 14 Attorneys for Defendant FRANK BISIGNANO, Commissioner of Social 15 Security (Per e-mail authorization)

ITISSOORDERED: “47 fff Z J? IK 19 THE HONORABLE MAXIMMLIANO D,ZOUVILLIER UNITED SrATES MAGIS) RATE SUBGE 20 21 DATED: 4-21-26 22 23 24 25 {13 Counsel for the plaintiff attests that all other signatories listed, and on whose 6 || behalf the filing is submitted, concur in the filing’s content and have authorized the filing.

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 Timothy Lee Avist 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 Timothy Lee Avist 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 4. I have been practicing Social Security law since 1990. I have a 11 Distinguished rating with Martindale Hubbell. The hourly rate I seek is 12 supported by the rate determinations for my services in other Social 13 Security cases in this District. See, Romero v. Bisignano, 2:25-cv-01521- 14 BNW (D. Nev. December 22, 2025); Mia L. M. v. Bisignano; 2:24-cv- 15 01107-DJA (D. Nev. July 9, 2025); Avila v. Bisignano, 2:24-cv-00690- 16 EJY (D. Nev. May 19, 2025); Nalbandian v. Dudek, 2:24-cv-01946- 17 BNW (D. Nev. May 2, 2025; Perez Luna v. Dudek, 2:24-cv-00550-DJA 18 (D. Nev. April 15, 2025); Garrison v. O’Malley, 2:23-cv-01063-NJK (D.

19 Nev. October 24, 2024; Smith v. O’Malley, No. 2:24-cv-00278-BNW (D. 20 Nev. October 10, 2024); Michelin v. Kijakazi, No. 2:23-cv-0547-NJK, 21 Docket No. 17 (D. Nev. Oct. 26, 2023). 22 5. Matthew Holmberg has been practicing Social Security law since 23 2018. Matthew Holmberg is an experienced attorney in Social Security 24 disability law and has practiced exclusively in this field since being 25 admitted to the State Bar of California on June 4, 2018. Matthew 26 Holmberg’s extensive experience includes handling, preparing clients 1 for, and participating in over 500 administrative hearings before the 2 Social Security Administration. Matthew Holmberg has also represented 3 over 260 clients on appeal before the Federal District Court, appealing 4 their denial of either Supplemental Security Income or Disability 5 Insurance Benefits. The Ninth Circuit has held that "rate determinations 6 in other cases [in that community], particularly those setting a rate for the 7 [specific] attorney[s]" at issue, may provide satisfactory evidence as to 8 the prevailing hourly rate. United Steelworkers of Am. v. Phelps Dodge 9 Corp., 896 F.2d 403, 407 (9th Cir. 1990). The requested hourly rate of 10 $258.46 per attorney hour sought by both Matthew Holmberg (MFH) and 11 me (MVK) are in accordance with those the Court has awarded to us in 12 other Social Security cases in this District. See, e.g., Will Watkins v. 13 Bisignano, No. 2:24-cv-00793-MDC, Docket No. 19 (D. Nev. Aug. 21, 14 2025) (awarding EAJA fees of $6,938.63 for 24.9 attorney hours at 15 $251.84 per hour = $6,270.82 and 4.67 paralegal hours at $179 per hour 16 = $835.93; $6,270.82 + $835.93 = $7,106.75 settled to a total EAJA fee 17 of $6,938.63); Heather Dawn I., v. O’Malley, No. 2:24-cv-00225-NJK, 18 Docket No. 19 (D. Nev. Aug. 29, 2024) (awarding EAJA fees of

19 $4,500.00 for 15.83 attorney hours at $244.62 per hour = $3,872.33 and 20 3.57 paralegal hours at $179.00 per hour =$639.03; $3,872.33 + $639.03 21 = $4,511.36 settled to a total EAJA fee of $4,500.00); Darren D. Caudill 22 v. O’Malley, No. 2:24-cv-00061-MDC, Docket No. 27 (D. Nev. Aug. 6, 23 2024) (awarding EAJA fees of $6,680.00 for 24.86 attorney hours at 24 $244.62 per hour = $6,081.25 and 3.37 paralegal hours at $179.00 per 25 hour = $603.23; $6,081.25 + $603.23 = $6,684.48 settled to a total EAJA 26 fee of $6,680.00; MFH performed 23.84 attorney hours and MVK 1 performed 1.02 attorney hours); Zakkary C. Erevia v. O’Malley, No. 2 2:24-cv-00637-DJA, Docket No. 15 (D. Nev. July 15, 2024) (awarding 3 EAJA fees of $1,571.67 for 4.8 attorney hours at $244.62 per hour = 4 $1,174.18 and 2.65 paralegal hours at $179.00 per hour = $474.35; 5 $1,174.18 + $474.35 = $1,648.53 settled to a total EAJA fee of 6 $1,571.67; MFH performed 4.35 attorney hours and MVK performed 7 0.45 attorney hours). 8 6. Enedina Perez, who performs the bulk of the paralegal work for cases 9 pending appeal before the District Court, has been with this law firm 10 since August 1998 and had one year of paralegal experience at another 11 firm before joining this firm. Enedina Perez coordinates all aspects of a 12 client’s case when it is pending appeal before the District Court, 13 including communicating with the clients by telephone, email, and 14 preparing letters with status, answering client questions, preparing legal 15 documents for filing, filing legal documents, ensuring compliance with 16 legal procedures and deadlines, scheduling deadlines, managing case 17 documentation to ensure information is easily accessible for attorneys, 18 etc.

19 7. All of the time commitments were or will be done on this case on a 20 contingency fee basis. 21 8. I rely on the Ninth Circuit’s calculation of the maximum hourly rates as 22 published on the Court’s website for the attorney rate in 2025. See 23 https://www.ca9.uscourts.gov/attorneys/statutory-maximum-rates/. 24 9. For paralegal rates, Monica Branch-Noto v. Sisolak, 618 F.Supp.3d 990, 25 995 (D. Nev. 2022), found that the local rates for paralegals were then 26 between $125 and $175 per hour. The rates applicable to a claimant 1 seeking review of the final decision of the Commissioner denying 2 disability benefits should always rest on the upper end of the range cited 3 by Judge Dorsey. That is $175 per hour—in 2022. In Baluma Sa v. 4 Mengle, 2025 U.S. Dist. LEXIS 3370, at *5, 2025 WL 48932 (D. Nev. 5 Jan. 8, 2025), the Court awarded fees for one paralegal and three 6 attorneys with rates from $295 to $525 per hour. Considering the 7 inflationary increase based on the rates published by the Ninth Circuit, 8 See https://www.ca9.uscourts.gov/attorneys/statutory-maximum-rates/, 9 the rate of $175 should reach up to $202 by December 2024. Fees should 10 keep with inflation. Gisbrecht v. Barnhart, 535 U.S. 789, 800 (2002). 11 10. The firm files a significant part of the Social Security disability actions as 12 referred from other law firms that either do not practice before the court 13 or have very limited practices before the court. Some of those lawyers 14 and non-attorney representatives are Welt Law, Shook & Stone Chtd., 15 and Disability Law Center of Nevada. This law firm also files a 16 significant number of actions for people whose attorneys have abandoned 17 them at the termination of the administrative process or who had no 18 representation before the Social Security Administration.

19 11. I am not aware of any members of the Social Security bar who would 20 have undertaken this litigation at the EAJA statutory rate of $125.00 per 21 hour. 22 12. Counsel for the parties have conferred about the instant request. The 23 lodestar amount is $5,763.87. The Commissioner does not oppose the 24 requested amount and stipulates to an award to Plaintiff of $5,600.00 in 25 fees under the Equal Access to Justice Act, 28 U.S.C. § 2412(d) and no 26 costs under 28 U.S.C. § 1920. 1 I declare under penalty of perjury that the foregoing is true and correct to the 2 best of my knowledge and belief. 3 Executed this April 14, 2026, at Santa Fe Springs, California. 4 5 /s/ Marc V. Kalagian 6 _________________________ Marc V. Kalagian 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 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 April 14, 2026, I served the foregoing document described as 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. Timothy Lee Avist, Jr. 4832 Fairfax Avenue 13 Las Vegas, NV 89120

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___________ 22 23 24 25 26