1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 ERIK W. H., Case No. 16-cv-07383-DMR

8 Plaintiff,

ORDER RE PLAINTIFF’S COUNSEL’S

9 v. MOTION FOR ATTORNEYS’ FEES

10 KILOLO KIJAKAZI, Acting Commissioner Re: Dkt. No. 38 of Social Security, 11 Defendant. 12 The court has received the motion for attorneys’ fees pursuant to 42 U.S.C. § 406(b) 13 submitted by Plaintiff Erik W. H.’s counsel, Josephine Gerrard. [Docket No. 38.] Defendant 14 Kilolo Kijakazi, Acting Commissioner of Social Security, filed a response. [Docket No. 39.] 15 In Gerrard’s motion, she represents that Plaintiff was awarded $179,011 in retroactive Title 16 II benefits. She asks the court for a net award of $25,753.00 in attorneys’ fees that would be 17 payable out of Plaintiff’s past due benefits. This sum represents a total attorneys’ fee award of 18 $44,753.00 minus $19,000.00 in fees payable by the government pursuant to the Equal Access to 19 Justice Act (“EAJA”), 28 U.S.C. § 2412(b), which the court previously awarded.1 [See Docket 20 No. 37.] 21 In this motion, Gerrard’s interests are adverse to those of her client, because any fees that 22 the court awards Gerrard pursuant to 42 U.S.C. § 406(b) will come from Plaintiff’s past-due 23 benefits. In other words, if the court grants Gerrard’s motion and awards her fees, it will reduce 24 25 1 A claimant’s attorney who is successful in obtaining both EAJA fees from the United States and 26 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) 27 (quotation omitted). Here, Gerrard asks the court to order the payment of attorneys’ fees in the 1 the amount of past-due benefits that Plaintiff will receive from Defendant by $25,753. 2 By no later than August 8, 2023, counsel shall serve Plaintiff with a copy of her motion 3 and this order and shall file a proof of service. The court grants Plaintiff until August 29, 2023 4 to submit any objections to Gerrard’s motion for attorneys’ fees. If the court does not receive 5 any objection from Plaintiff by August 29, 2023 the court will decide Gerrard’s motion based on 6 the papers already submitted. 7 8 IT IS SO ORDERED. 9 Dated: August 4, 2023 10 ______________________________________ Donna M. Ryu 11 Chief Magistrate Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27