Lemmens v. Commissioner of Social Security

1 CHRISTOPHER CHIOU, Nevada Bar No. 14853 Acting United States Attorney District of Nevada MARCELO ILLARMO, MASBN 670079 Special Assistant United States Attorney Spear Street, Suite 800 San Francisco, California 94105 Telephone: (415) 977-8944 Facsimile: (415) 744-0134 E-Mail: [email protected] Attorneys for Defendant

UNITED STATES DISTRICT COURT DISTRICT OF NEVADA JOSHUA E. LEMMENS, ) 13 ) Case No.: 2:20-cv-00881-BNW Plaintiff, ) 14 ) STIPULATION FOR THE AWARD AND vs. ) PAYMENT OF ATTORNEY FEES AND 15 ) EXPENSES PURSUANT TO THE EQUAL KILOLO KIJAKAZI, 1 ) ACCESS TO JUSTICE ACT, 28 U.S.C. § 2412(d), Acting Commissioner of Social Security, ) AND COSTS PURSUANT TO 28 U.S.C. § 1920. ) 17 Defendant. ) ) Kilolo Kijakazi became the Acting Commissioner of Social Security on July 9, 2021. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Kilolo Kijakazi should be substituted, therefore, for Andrew Saul as the defendant in this suit. No further action need be taken to continue this suit by reason of the last sentence of section 205(g) of the Social Security Act, 42 U.S.C. § 405(g).

2 IT IS HEREBY STIPULATED by and between the parties through their undersigned counsel, subject to the approval of the Court, that Plaintiff be awarded attorney fees and expenses in the amount of seven thousand five hundred seventeen dollars and twenty five cents ($7,637.25) under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d), consisting of seven thousand six hundred twenty dollars ($7,620.00) in fees and seventeen dollars and twenty five cents ($17.25) in expenses; and four hundred dollars ($400.00) in costs 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 Plaintiff, the government will consider the matter of Plaintiff’s assignment of EAJA fees to Howard Olinsky of the Olinsky Law Group. Pursuant to Astrue v. Ratliff, 560 U.S. 586, 598, 130 S.Ct. 2521, 177 L.Ed.2d 91 (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 Plaintiff, but if the Department of the Treasury determines that Plaintiff does not owe a federal debt, then the government shall cause the payment of fees, expenses and costs to be made directly to Howard Olinsky, pursuant to the assignment executed by Plaintiff. Any payments made shall be delivered to Howard Olinksy.

19 This stipulation constitutes a compromise settlement of Plaintiff’s request for EAJA attorney fees, and does not constitute an admission of liability on the part of Defendant under the EAJA or otherwise.

21 Payment of the agreed amount shall constitute a complete release from, and bar to, any and all claims that Plaintiff, Howard Olinksy, including his firm, Olinsky Law Group, and/or Hal Taylor may have relating to EAJA attorney fees in connection with this action.

24 This award is without prejudice to the rights of Howard Olinsky to seek Social Security Act attorney fees under 42 U.S.C. § 406(b), subject to the savings clause provisions of the EAJA.

1 Respectfully submitted, Dated: November 15, 2021 /s/ Hal Taylor* 4 HAL TAYLOR, ESQ. (*authorized by e-mail on 11/11/21) 5 Of Counsel, Olinsky Law Group 6 Attorney for Plaintiff Dated: November 15, 2021 CHRISTOPHER CHIOU 8 Acting United States Attorney 9 /s/ Marcelo Hlarmo MARCELO ILLARMO 10 Special Assistant United States Attorney 1] 19 Order 20 IT IS ORDERED that ECF No. 24 is DENIED without prejudice.

There appear to be typographical errors in the amount 21 stipulated to be paid to Plaintiff's counsel such that the Court cannot determine what amount the parties stipulate to. See 22 ECF No. 24 at 2. IT IS FURTHER ORDERED that if the parties 3 refile their stipulation, they must also indicate whether Plaintiff's motion for fees at ECF No. 23 is moot.

24 IT IS SO ORDERED DATED: 9:23 am, November 16, 2021 26 UNITED STATES MAGISTRATE JUDGE 1 CERTIFICATE OF SERVICE I, the undersigned, am a citizen of the United States and am at least eighteen years of age. My business address is 160 Spear Street, Suite 800, San Francisco, California 94105. I am not a party to the above-entitled action. On the date set forth below, I caused service of STIPULATION 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 on the following parties by electronically filing the foregoing with the Clerk of the District Court using its ECF System, which provides electronic notice of the filing: Hal Taylor: [email protected] Attorney for Plaintiff I declare under penalty of perjury that the foregoing is true and correct.

Dated: November 15, 2021

/s/ Marcelo Illarmo MARCELO ILLARMO Special Assistant United States Attorney