Gardner-Kerlick v. Social Security Administration

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

JENNIFER J. GARDNER-KERLICK, Plaintiff, vs. CIV NO. 2:22-cv-00974-KRS KILOLO KIJAKAZI, Acting Commissioner of the Social Security Administration, Defendant.

ORDER GRANTING STIPULATED MOTION FOR EQUAL ACCESS TO JUSTICE (EAJA) ATTORNEY FEES The Court, having reviewed the parties’ Unopposed Motion for Attorney Fees Pursuant to the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412 (Doc. 26), HEREBY ORDERS that attorney fees be, and hereby are, awarded under the EAJA, payable to Plaintiff but mailed to Plaintiff’s attorney in the amount of $9,326.72 in attorney fees. See Astrue v. Ratliff, 560 U.S. 586 (2010) (EAJA fees are paid to the prevailing party, not the attorney).

Payment of this amount shall constitute a complete release from and bar to any and all claims Plaintiff may have relating to EAJA fees in connection with this action. However, the EAJA award is without prejudice to Plaintiff’s attorney’s right to seek attorney fees pursuant to Social Security Act § 206(b), 42 U.S.C. § 406(b), and subject to the offset provisions of the EAJA. See 28 U.S.C. § 2412(c)(1) (2006).

IT IS FURTHER ORDERED THAT, if Plaintiff’s counsel receives attorney fees under both the EAJA and 42 U.S.C. § 406(b) of the Social Security Act, Plaintiff’s counsel shall refund the smaller award to Plaintiff pursuant to Weakley v. Bowen, 803 F.2d 575, 580 (10th Cir. 1986).

IT IS SO ORDERED this 28th day of November, 2023.

KEVIN R. SWEAZEA UNITED STATES MAGISTRATE JUDGE Submitted by: ALEXANDER M.M. UBALLEZ United States Attorney MANUEL LUCERO Assistant United States Attorney /s/ Michelle C. Verdis MICHELLE C. VERDIS ATTORNEYS FOR DEFENDANT Approved by: /s/ electronically approved 11/27/2023 MATTHEW R. MCGARRY, ESQ.

Olinsky Law Group ATTORNEY FOR PLAINTIFF