Luhr v. Berryhill

Filing 35

Order by Magistrate Judge Robert M. Illman granting in part and denying in part 30 Motion for Attorney Fees. (rmilc2S, COURT STAFF) (Filed on 4/26/2021)

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Case 3:17-cv-00686-EDL Document 35 Filed 04/26/21 Page 1 of 1 1 UNITED STATES DISTRICT COURT 2 NORTHERN DISTRICT OF CALIFORNIA 3 EUREKA DIVISION 4 5 KEVIN DALE LUHR, 6 Plaintiff, 7 8 9 Case No. 17-cv-00686-EDL (RMI) ORDER RE: MOTION FOR ATTORNEYS’ FEES UNDER v. NANCY A. BERRYHILL, Re: Dkt. No. 30 Defendant. 10 United States District Court Northern District of California 11 Having considered Plaintiff’s motion for fees (dkt. 30), Defendant’s response (dkt. 31), 12 and the Parties’ competing proposed orders (dkts. 34-1 and 34-2), the court finds that the 25% 13 contingency fee of $27,510.43 is reasonable and allowable under 42 U.S.C. § 406(b)(1)(A). The 14 court previously awarded $4,788.53 in fees under the Equal Access to Justice Act (“EAJA”) (see 15 dkt. 29), an amount that has already been received by Plaintiff’s counsel. Accordingly, Plaintiff’s 16 motion for fees under § 406(b)(1) in the amount of $27,510.43 is GRANTED; the Commissioner 17 is directed to certify payment in that amount to Plaintiff’s counsel and Plaintiff’s counsel is 18 ORDERED to refund $4,788.53 to Plaintiff upon receipt of that award. As to the Parties’ 19 disagreement (see dkt. 34) regarding counsel’s request for a “net award,” the court disagrees with 20 that interpretation and instead adopts Defendant’s position. See e.g. Gisbrecht v. Barnhart, 535 21 U.S. 789, 796 (2002) (“Congress harmonized fees payable by the Government under EAJA with 22 fees payable under § 406(b) out of the claimant’s past-due Social Security benefits in this manner: 23 Fee awards may be made under both prescriptions, but the claimant’s attorney must refund to the 24 claimant the amount of the smaller fee.”) (emphasis added) (citations omitted). 25 26 IT IS SO ORDERED. Dated: April 26, 2021 27 28 ROBERT M. ILLMAN United States Magistrate Judge

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