Kimberly M. v. Saul
- Donna Ryu
- 4:19-cv-06585-DMR
- U.S. District Court · Northern District of California
- 2
In Kimberly M. v. Kijakazi, Judge Ryu ordered service and invited objections before deciding counsel’s motion for $18,827.29 in Social Security fees.
Kimberly M. and her counsel, Joshua B. Kons. The requested fee award would reduce Kimberly M.’s past-due benefits if granted, but the court had not yet decided the motion.
What happened
In Kimberly M. v. Kijakazi, Kimberly M.’s counsel, Joshua B. Kons, asked for attorney-fee payment from her past-due Social Security benefits under federal law. The requested net amount was $18,827.29.
The request was based on reported retroactive benefits of $139,119.90. Kons sought a total fee award of $25,579.98, reduced by $6,752.69 previously awarded under the Equal Access to Justice Act. Because the requested fees would come from Kimberly M.’s past-due benefits, the court explained that counsel’s interests differed from his client’s.
Judge Donna M. Ryu ordered counsel to serve Kimberly M. with the motion and order and file proof of service. The court gave Kimberly M. until September 1, 2023, to object and said it would decide the fee motion on the submitted papers if no objections were received.
The detailed version
- Kimberly M. v. Saul · No. 4:19-cv-06585-DMR
- Donna Ryu
- Aug. 7, 2023
Background
Joshua B. Kons, counsel for Kimberly M., filed a motion under 42 U.S.C. § 406(b) seeking attorney’s fees from Kimberly M.’s past-due Title II Social Security benefits. The Commissioner of Social Security filed a response.
Kons represented that Kimberly M. had been awarded $139,119.90 in retroactive Title II benefits. He requested a net fee award of $18,827.29. That amount represented a total requested fee of $25,579.98 minus $6,752.69 in fees previously awarded by the government under the Equal Access to Justice Act.
The order explained that counsel’s interests were adverse to Kimberly M.’s interests for purposes of the motion because any § 406(b) award would be paid from her past-due benefits and would reduce the amount she received from the Commissioner. The order also noted that an attorney who receives both Equal Access to Justice Act fees and § 406(b) fees must refund the smaller fee to the claimant.
Court’s Action
Judge Donna M. Ryu ordered Kons to serve Kimberly M. with the fee motion and the order by August 11, 2023, and to file proof of service. The court gave Kimberly M. until September 1, 2023, to submit objections. It stated that, if no objections were received by that date, it would decide Kons’s motion based on the papers already submitted. The order did not decide whether to award the requested fees.
Read the full 2-page opinion on CourtListener, the free public archive maintained by the Free Law Project.