Hoffschneider v. Colvin

Filing 40

ORDER RE PLAINTIFF'S COUNSELS MOTION FOR ATTORNEYS' FEES. Signed by Judge Donna M. Ryu on 8/4/2023. Objections due by 8/29/2023 re 38 MOTION for Attorney Fees Pursuant to 43:406(B). (kc, COURT STAFF) (Filed on 8/4/2023)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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ERIK W. H.,

Case No. 16-cv-07383-DMR
Plaintiff,

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ORDER RE PLAINTIFF’S COUNSEL’S
MOTION FOR ATTORNEYS’ FEES

v.

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KILOLO KIJAKAZI, Acting Commissioner
of Social Security,

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Re: Dkt. No. 38

United States District Court
Northern District of California

Defendant.
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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

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Kilolo Kijakazi, Acting Commissioner of Social Security, filed a response. [Docket No. 39.]
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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

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$44,753.00 minus $19,000.00 in fees payable by the government pursuant to the Equal Access to
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Justice Act (“EAJA”), 28 U.S.C. § 2412(b), which the court previously awarded.1 [See Docket

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No. 37.]
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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

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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.
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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

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and this order and shall file a proof of service. The court grants Plaintiff until August 29, 2023

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to submit any objections to Gerrard’s motion for attorneys’ fees. If the court does not receive

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any objection from Plaintiff by August 29, 2023 the court will decide Gerrard’s motion based on

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the papers already submitted.

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United States District Court
Northern District of California

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IT IS SO ORDERED.
Dated: August 4, 2023
______________________________________
Donna M. Ryu
Chief Magistrate Judge

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