Erik W. H. v. Colvin
- Donna Ryu
- 4:16-cv-07383
- U.S. District Court · Northern District of California
- 2
In Erik W. H. v. Kijakazi, Judge Ryu ordered service and invited objections before deciding counsel’s Social Security fee motion.
Erik W. H. and his counsel, Josephine Gerrard; any approved fee would come from Erik W. H.’s past-due Social Security benefits.
What happened
In Erik W. H. v. Kijakazi, Plaintiff’s lawyer, Josephine Gerrard, asked the court to approve $25,753 in fees from Plaintiff’s past-due Social Security benefits. She said Plaintiff had received $179,011 in retroactive benefits.
The requested amount represented a total fee request of $44,753, minus $19,000 previously awarded to counsel under a law allowing fees against the government. Because any approved fee would reduce Plaintiff’s past-due benefits, the court required that Plaintiff receive notice of the request.
The court did not yet decide the fee motion. It ordered counsel to serve Plaintiff with the motion and order by August 8, 2023, and allowed objections through August 29, 2023. Judge Donna M. Ryu said the court would decide the motion from the existing papers if no objection was filed.
The detailed version
- Erik W. H. v. Colvin · No. 4:16-cv-07383
- Donna Ryu
- Aug. 4, 2023
Background
Plaintiff’s counsel, Josephine Gerrard, submitted a motion under 42 U.S.C. § 406(b) seeking attorneys’ fees from Plaintiff’s past-due Social Security benefits. Gerrard represented that Plaintiff had been awarded $179,011 in retroactive Title II benefits. She requested a net fee award of $25,753.
The requested net amount was calculated from a total fee request of $44,753, less $19,000 in fees that the court had previously awarded under the Equal Access to Justice Act, a statute that permits certain fee awards payable by the government. The order also explained that when counsel receives both types of fee awards, counsel must refund the smaller fee to the claimant.
Notice and opportunity to object
The court stated that counsel’s interests were adverse to Plaintiff’s interests in this motion because any § 406(b) fees would come from Plaintiff’s past-due benefits and reduce the amount Plaintiff would receive from the Social Security Administration.
The court ordered counsel to serve Plaintiff with a copy of the fee motion and the order by August 8, 2023, and to file proof of service. Plaintiff could submit objections by August 29, 2023.
Disposition
The court did not decide whether to award the requested fees. It stated that if Plaintiff did not object by August 29, 2023, it would decide counsel’s motion based on the papers already submitted. The order was issued by Chief Magistrate Judge Donna M. Ryu on August 4, 2023.
Read the full 2-page opinion on CourtListener, the free public archive maintained by the Free Law Project.