United States District Court, N.D. Oklahoma
OPINION AND ORDER TO GRANT PLAINTIFF'S MOTION FOR
B. Cohn, United States Magistrate Judge
the Court are Plaintiff's Motion for Attorney Fees
pursuant to 42 U.S.C. § 406(b). (Doc. 25). In
Plaintiff's motion, Plaintiff's counsel seeks
approval of an attorney fee award of $7, 192.00 pursuant to
42 U.S.C. § 406(b) and the terms of the contingency fee
contract between Plaintiff and counsel. Id.
STANDARD OF REVIEW
fees awarded under other statutes such as the Equal Access to
Justice Act (“EAJA”), 28 U.S.C. § 2412, fees
under 42 U.S.C. § 406(b) are paid from the
claimant's benefits, rather than from agency funds, based
on a contract between the claimant and the claimant's
attorney. Pursuant to 42 U.S.C. § 406(b), a district
court must independently assess the reasonableness of the
terms in contingent-fee agreements. Gisbrecht v.
Barnhart, 535 U.S. 789, 808 (2002). § 406(b)
“calls for court review of such arrangements as an
independent check, to assure that they yield reasonable
results in particular cases, ” and to guard against
windfalls for lawyers. Id. at 807-08. Decisions on
motions for § 406(b) fees “are committed to the
district court's sound discretion.” McGraw v.
Barnhart, 450 F.3d 493, 505 (10th Cir. 2006). Section
406(b) contemplates awarding a reasonable fee only for work
performed before the court, not for work performed before the
agency. See McGraw, 450 F.3d at 498. Thus, in
considering the reasonableness of a § 406(b) request,
the court should not consider time enumerated for any work
that was performed before the administrative agency.
Additionally, where a plaintiff is also awarded attorney fees
under the EAJA, plaintiff's attorney must refund the
lesser of the two fees to plaintiff. See Gisbrecht,
535 U.S. at 796; Weakley v. Bowen, 803 F.2d 575, 580
(10th Cir. 1986).
case, Defendant issued to Plaintiff a Notice of Award on
February 26, 2018, showing Plaintiff was entitled to past due
benefits, of which Defendant withheld 25 percent, or a total
of $13, 192.00, for the payment of attorney fees (see Doc.
25-1 at 2). Here, counsel requests $7, 192.00 in fees for
19.55 hours of attorney work (see Doc. 25 at 3; Doc. 25-4).
In her response, Defendant notes she is “not a party to
§ 406(b) fee awards and generally takes no position on
such petitions…but rather she defers to the
Court's sound discretion as to the reasonableness of the
fee award.” (Doc. 27).
January 2017 the Court entered judgment in favor of Johnston,
remanding the case for further proceedings. (Docs. 16, 17).
On remand, the agency determined that Johnston became
disabled in August 2013 and was entitled benefits beginning
February 2014. The Notice of Award indicates that the agency
withheld $13, 192.00 from Johnston's past due benefits in
order to pay attorney fees. (Doc. 25-1).
agency withholds 25 percent of back benefits to pay fees, the
notice of award show $39, 576.00 in back benefits were
awarded on remand. Plaintiffs counsel may request fees for as
much as $9, 919.00. (Doc. 25-1). However, Plaintiffs counsel
requests attorney fees for 19.55 hours of court work
amounting to $7, 192.00, which is less than the contractual
amount. (Doc. 25). The EAJA payment of $3, 955.55 will also
be available for payment of the § 406(b) fees. Once the
§ 406(b) fee amount is paid in full, the $3, 955.55 EAJA
payment received by counsel will immediately be refunded to
Plaintiff. Therefore, Plaintiff will be out of pocket less
than the 25 percent of back benefits she contracted to pay
attorney fees. According to law, the excess EAJA award will
immediately be refunded to Plaintiff to the extent counsel
has been double paid for the same work.
the Court concludes that a fee award of $7, 192.00 is
reasonable in this matter. This amount is consistent with the
contract between counsel and Plaintiff and is within the
statutory limits of § 406(b).
Motion for Attorney Fees pursuant to 42 U.S.C. § 406(b)
(doc. 33) is hereby GRANTED as follows. The Court finds $7,
192.00 to be a reasonable attorney fee, and that fee is
hereby awarded to Plaintiffs attorney. Upon receipt of
payment, counsel is required to refund to Plaintiff the
smaller of the § 406(b) fees or the EAJA fees pursuant
to Weakley, 803 F.2d at 580.