Harmon v. Commissioner of Social Security

Filing 20

STIPULATION and ORDER 19 for award and payment of attorney fees and expenses pursuant to Equal Access to Justice Act (EAJA) signed by Magistrate Judge Dale A. Drozd on 11/20/2014. Plaintiff Kim Harmon is awarded fees and costs in amount of $3,300.00 under EAJA and costs in amount of $400.00. (Marciel, M)

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Marc V. Kalagian
Attorney at Law: 149034
Law Offices of Rohlfing & Kalagian, LLP
211 East Ocean Boulevard, Suite 420
Long Beach, CA 90802
Tel.: [phone]
Fax: [phone]
E-mail: [e-mail]
Attorneys for Plaintiff
Kim R. Harmon

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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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KIM R. HARMON,

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Plaintiff,
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vs.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.

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No. 2:13-cv-01374 DAD
STIPULATION AND ORDER FOR
THE AWARD AND PAYMENT OF
ATTORNEY FEES AND EXPENSES
PURSUANT TO THE EQUAL
ACCESS TO JUSTICE ACT, 28 U.S.C.
§ 2412(d) AND COSTS PURSUANT
TO 28 U.S.C. § 1920

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TO THE HONORABLE DALE A. DROZD, MAGISTRATE JUDGE 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 Kim R. Harmon be
awarded attorney fees and expenses in the amount of Three Thousand Three
Hundred dollars ($3,300.00) under the Equal Access to Justice Act (EAJA), 28
U.S.C. § 2412(d), and costs in the amount of Four Hundred dollars ($400.00)
under 28 U.S.C. § 1920. This amount represents compensation for all legal

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services rendered on behalf of Plaintiff by counsel in connection with this civil

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action, in accordance with 28 U.S.C. §§ 1920; 2412(d).

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After the Court issues an order for EAJA fees to Kim R. Harmon, the

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government will consider the matter of Kim R. Harmon's assignment of EAJA fees

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to Marc V. Kalagian. The retainer agreement containing the assignment is

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attached as exhibit 1. Pursuant to Astrue v. Ratliff, 130 S.Ct. 2521, 2529 (2010),

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the ability to honor the assignment will depend on whether the fees are subject to

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any offset allowed under the United States Department of the Treasury's Offset

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Program. After the order for EAJA fees is entered, the government will determine

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whether they are subject to any offset.

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Fees shall be made payable to Kim R. Harmon, but if the Department of the

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Treasury determines that Kim R. Harmon does not owe a federal debt, then the

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government shall cause the payment of fees, expenses and costs to be made

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directly to Law Offices of Rohlfing & Kalagian, LLP, pursuant to the assignment

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executed by Kim R. Harmon. United States v. $186,416.00, 722 F.3d 1173, 1176

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(9th Cir. 2013) ($186,416.00 II) (ordering fees paid to counsel because of an

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assignment that did not interfere with a raised superior lien).1

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The Commissioner does not stipulate to the citation of $186,416.00 II, and will
not participate in representing to this Court that it carries legal import in these
proceedings. $186,416 II involved a different statute and very different factual
circumstances than those presented here, or in other Social Security cases.
Because the parties have agreed to the payment of EAJA fees, and the amount, and
to avoid motion practice solely related to Plaintiff’s citation, the Commissioner
agrees to this stipulation. The Commissioner reserves the right to challenge the
applicability of $186,416 II to any Social Security case, and this Stipulation should
not be construed as a waiver of such reservation. Kim R. Harmon contends that
U.S. v. $186,416.00 in U.S. Currency, 642 F.3d 753, 757 (9th Cir. 2011)
($186,416.00 I) held that there is no functional difference between the CAFRA and
EAJA in terms of "ownership" of the fee.
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Any payments made shall be delivered to Marc V. Kalagian. This stipulation

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constitutes a compromise settlement of Kim R. Harmon's request for EAJA

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attorney fees, and does not constitute an admission of liability on the part of

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Defendant under the EAJA or otherwise. Payment of the agreed amount shall

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constitute a complete release from, and bar to, any and all claims that Kim R.

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Harmon and/or Marc V. Kalagian including Law Offices of Rohlfing & Kalagian,

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LLP may have relating to EAJA attorney fees in connection with this action.

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This award is without prejudice to the rights of Marc V. Kalagian and/or the
Law Offices of Rohlfing & Kalagian, LLP to seek Social Security Act attorney

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fees under 42 U.S.C. § 406(b), subject to the savings clause provisions of the

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EAJA.

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DATE: November 20, 2014

Respectfully submitted,

LAW OFFICES OF ROHLFING & KALAGIAN, LLP
/s/ Marc V. Kalagian
BY: __________________
Marc V. Kalagian
Attorney for plaintiff Kim R. Harmon

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DATED: November 20, 2014 BENJAMIN B. WAGNER
United States Attorney

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/s/ Paul Sachelari
BY:
Paul Sachelari
Special Assistant United States Attorney
Attorneys for Defendant Carolyn W. Colvin,
Acting Commissioner of Social Security
(Per e-mail authorization)

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ORDER
Pursuant to the parties’ stipulation, IT IS SO ORDERED
Dated: November 20, 2014

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Ddad1\orders.soc sec
harmon1374.stip.EAJA.ord.docx

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