Opinion
16-cv-07383-DMR
08-04-2023
ERIK W. H., Plaintiff, v. KILOLO KIJAKAZI, Acting Commissioner of Social Security, Defendant.
ORDER RE PLAINTIFF'S COUNSEL'S MOTION FOR ATTORNEYS' FEES
Re: Dkt. No. 38
Donna M. Ryu Chief Magistrate Judge
The court has received the motion for attorneys' fees pursuant to 42 U.S.C. § 406(b) submitted by Plaintiff Erik W. H.'s counsel, Josephine Gerrard. [Docket No. 38.] Defendant Kilolo Kijakazi, Acting Commissioner of Social Security, filed a response. [Docket No. 39.]
In Gerrard's motion, she represents that Plaintiff was awarded $179,011 in retroactive Title II benefits. She asks the court for a net award of $25,753.00 in attorneys' fees that would be payable out of Plaintiff's past due benefits. This sum represents a total attorneys' fee award of $44,753.00 minus $19,000.00 in fees payable by the government pursuant to the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(b), which the court previously awarded. [See Docket No. 37.]
A claimant's attorney who is successful in obtaining both EAJA fees from the United States and an award under 42 U.S.C. § 406(b) (which comes out of past-due benefits) must “refun[d] to the claimant the amount of the smaller fee.” Gisbrecht v. Barnhart, 535 U.S. 789, 796 (2002) (quotation omitted). Here, Gerrard asks the court to order the payment of attorneys' fees in the amount of $44,753.00 with a credit to Plaintiff for the $19,000.00 in EAJA fees previously paid to counsel.
In this motion, Gerrard's interests are adverse to those of her client, because any fees that the court awards Gerrard pursuant to 42 U.S.C. § 406(b) will come from Plaintiff's past-due benefits. In other words, if the court grants Gerrard's motion and awards her fees, it will reduce the amount of past-due benefits that Plaintiff will receive from Defendant by $25,753.
By no later than August 8, 2023, counsel shall serve Plaintiff with a copy of her motion and this order and shall file a proof of service. The court grants Plaintiff until August 29, 2023 to submit any objections to Gerrard's motion for attorneys' fees. If the court does not receive any objection from Plaintiff by August 29, 2023 the court will decide Gerrard's motion based on the papers already submitted.
IT IS SO ORDERED.