United States District Court, E.D. Oklahoma
FINDINGS AND RECOMMENDATION
KIMBERLY E. WEST UNITED STATES MAGISTRATE JUDGE.
matter comes before this Court on the Motion for Attorney
Fees Under 42 U.S.C. § 406(b) filed by Gayle Troutman of
the law firm of Troutman and Troutman, counsel for Plaintiff
(Docket Entry #27). This Motion was referred to the
undersigned by Order of United States District Judge James H.
Payne for the entry of Findings and a Recommendation on the
disposition of counsel's Motion.
requests that she be awarded fees for legal work pursuant to
42 U.S.C. § 406(b) in the amount of $17, 000.00. Counsel
was employed by Plaintiff to appeal the adverse decision
rendered by Administrative Law Judge presiding over the
request for benefits. To that end, Counsel entered into a
contract for compensation with Plaintiff, providing for the
payment of a fee equal to 25% of any past due benefits
ultimately awarded to Plaintiff. Such contracts are
recognized as valid under the prevailing case authority.
Gisbrecht v. Barnhart, 535 U.S. 789, 807 (2002).
filed this case on behalf of Plaintiff, filed the initial
brief-in-chief on the issues relevant to the appeal.
Plaintiff's counsel successfully obtained a reversal and
remand to Defendant for further proceedings. On remand,
Plaintiff received a favorable decision from Defendant and
was awarded past due benefits in the amount of $77, 565.00.
amount awarded to counsel for successfully prosecuting an
appeal of a denial of Social Security benefits and obtaining
benefits for a claimant may not exceed 25% of past due
benefits. 42 U.S.C. § 406(b)(1)(A). As in this case,
Defendant is authorized to withhold up to 25% of the past due
benefits awarded to a claimant for payment directly to the
claimant's attorney. 42 U.S.C. § 406(a)(4). The
Tenth Circuit Court of Appeals has determined that the 25%
amount is separate and apart from the amount awarded at the
agency level under 42 U.S.C. § 406(a). Wrenn v.
Astrue, 525 F.3d 931, 937-938 (10th Cir. 2008). The only
condition upon the full award of 25% is a requirement that
the court review contingency fee arrangements “to
assure that they yield reasonable results in particular
cases.” Id. at 938 (citations omitted).
Counsel's requested fees do not exceed either the amount
contracted for in the contingency fee agreement or the
limitations of § 406(b).
does not take a position on awarding the amount requested but
does advise this Court of its obligation to make an
“independent check” as to the reasonableness of
the award. Despite the fact the source for Counsel's
compensation is a contingency fee contract, this Court has
reviewed the contemporaneous time and expense records based
upon the admonishment of the Tenth Circuit to do so and finds
the time expended to be reasonable and necessary in
consideration of the result obtained.
Defendant's stated concern that Counsel have been
compensated by EAJA is allayed by the fact Counsel must
refund the smaller of any EAJA award and the amount awarded
under § 406(b) to prevent a double recovery by the
attorney. Kemp v. Bowen, 822 F.2d 966, 968 (10th
Cir. 1987). Counsel will be required to make the refund.
also rightly states that the request for § 406(b) fees
must be filed within a reasonable time. In seeking an award
under § 406(b), an attorney is required to employ the
provisions of Fed.R.Civ.P. 60(b)(6). McGraw v.
Barnhart, 450 F.3d 493, 505 (10th Cir. 2006). While
relief under this rule is considered extraordinary and
reserved for exceptional circumstances, substantial justice
is served by permitting its use in the circumstance faced by
counsel in seeking these fees. Id. To that end, any
fee request pursued under § 406(b) should be filed
“within a reasonable time of the Commissioner's
decision awarding benefits.” Id. (citation
case, the Notice of Award was issued by Defendant on December
3, 2017. Counsel filed the subject Motion on December 5,
2017. This Court concludes that counsel was diligent and
timely in filing the request for § 406(b) compensation.
Therefore, the request is considered timely.
THEREFORE THE RECOMMENDATION OF THIS COURT that the Motion
for Attorney Fees Under 42 U.S.C. § 406(b) filed by
Gayle Troutman of the law firm of Troutman and Troutman,
counsel for Plaintiff (Docket Entry #27) be
GRANTED and Plaintiff's counsel be
awarded fees in the amount of $17, 000.00 to be paid by
Defendant directly to counsel from the amount of past due
benefits withheld for that purpose.
FURTHER RECOMMENDED that Plaintiff's counsel be ordered
to refund the smaller amount between any EAJA fees already
awarded and the § 406(b) fees awarded in this decision
to Plaintiff. Weakley v. Bowen, 803 F.2d 575, 580
(10th Cir. 1986). The parties are herewith given fourteen
(14) days from the date of the service of these Findings and
Recommendation to file with the Clerk of the court any
objections, with supporting brief. Failure to object to the
Findings and ...