Martin v. Saul

4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA KIMBERLY M., Case No. 19-cv-06585-DMR 8 Plaintiff, ORDER RE MOTION FOR 9 v. ATTORNEYS’ FEES 10 KILOLO KIJAKAZI, ACTING Re: Dkt. No. 27 COMMISSIONER OF SOCIAL 11 SECURITY, 12 Defendant.

13 Plaintiff Kimberly M.’s counsel, Joshua B. Kons, filed a motion for attorneys’ fees pursuant to 42 U.S.C. § 406(b). [Docket No. 27.] Defendant Kilolo Kijakazi, Acting Commissioner of Social Security, filed a response. [Docket No. 29.]

16 Kons represents that Plaintiff was awarded $139,119.90 in retroactive Title II benefits. He asks the court for a net award of $18,827.29 in attorneys’ fees payable out of Plaintiff’s past due benefits. This sum represents a total attorneys’ fee award of $25,579.98 minus $6,752.69 in fees payable by the government pursuant to the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 20 2412(b), which the court previously awarded.1 [See Docket No. 26.]

21 In this motion, Kons’ interests are adverse to those of his client, because any fees that the court awards Kons pursuant to 42 U.S.C. § 406(b) will come from Plaintiff’s past-due benefits. In other words, if the court grants Kons’ motion and awards fees, it will reduce the amount of past- due benefits that Plaintiff will receive from Defendant by $18,827.29.

1 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, Kons asks the court to order the payment of attorneys’ fees in the 1 By August 11, 2023, counsel shall serve Plaintiff with a copy of his motion and this order and shall file a proof of service. The court grants Plaintiff until September 1, 2023 to submit any objections to Kons’ motion for attorneys’ fees. If the court does not receive any objections from Plaintiff by September 1, 2023, the court will decide Kons’ motion based on the papers already submitted.

7 IT IS SO ORDERED.

8 Dated: August 7, 2023 9 ______________________________________ Donna M. Ryu Chief Magistrate Judge