The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
ORDER FOR SUPPLEMENTAL STATEMENT (Doc. 32)
On July 23, 2012, Plaintiff's counsel filed a motion for attorneys' fees pursuant to 42 U.S.C. § 406(b). (Doc. 32.) On August 6, 2012, the Commissioner filed a statement noting that Plaintiff's counsel is seeking an amount that does not fully credit Plaintiff for the amount of attorneys' fees already awarded pursuant to the Equal Access to Justice Act ("EAJA"). Specifically, Plaintiff and the Commissioner stipulated to an award of EAJA attorneys' fees in the amount of $7,000. (Doc. 31.) After the case was remanded, the agency awarded benefits and calculated the past-due benefits in the amount of $37,349.59. (Doc. 32-3, p. 2.) Plaintiff and his counsel have a contingency fee agreement whereby Plaintiff agreed to pay 25 percent of any award of past-due benefits. (Doc. 32-1.)
Under the contingency fee agreement, Plaintiff's counsel is entitled to $9,337.37. However, attorneys' fee awards pursuant to EAJA must be credited back to a plaintiff if counsel seeks an award of contingency fees under Section 406(b). See Gisbrecht v. Barnhart, 535 U.S. 789 (2002) (noting that "Congress harmonized fees payable by the Government under EAJA with fees payable under § 406(b) out of the claimant's past-due Social Security benefits" by requiring the claimant's attorney to refund to the claimant the amount of the smaller fee up to the point where the claimant receives 100% of the past-due benefits).
Here, Plaintiff's counsel seeks an award of $9,337.37 with a credit to Plaintiff in the amount of $2,337.37 instead of the $7,000 amount that was awarded in EAJA attorneys' fees. The credit to Plaintiff must be in the full amount of the awarded EAJA fees, because the $7,000 EAJA award is less than the $9,337.37 Section 406(b) fees sought. The amount to which Plaintiff's counsel is entitled under Section 406(b) is $2,337.37 -- after the payment of a $7,000 off-set to Plaintiff. Accordingly, there appears to be an error in Plaintiff's counsel's brief.
Accordingly, IT IS HEREBY ORDERED that Plaintiff's counsel shall file a supplemental statement on or before August 30, 2012, indicating whether there is an error in the motion for attorneys' fees or set forth reasons why Plaintiff is not entitled to a $7,000 off-set for EAJA fees previously awarded.
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