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