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