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)

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