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 Relief
Pursuant to Fed.R.Civ.P. 60(b)(6) and Motion for Attorney
Fees Under 42 U.S.C. § 406(b) filed by Miles L. Mitzner,
counsel for Plaintiff (Docket Entry #25). 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 he be awarded fees for legal work pursuant to
42 U.S.C. § 406(b) in the amount of $19, 012.63. 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 and 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 $76, 050.52.
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
defers to the Court for determining the reasonableness of the
request. 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.
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 omitted).
case, the Notice of Award was issued by Defendant on February
4, 2019. Counsel filed the subject Motion on March 6, 2019.
This Court concludes that counsel was relatively 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 Relief Pursuant to Fed.R.Civ.P. 60(b)(6) and Motion for
Attorney Fees Under 42 U.S.C. § 406(b) filed by Miles L.
Mitzner, counsel for Plaintiff (Docket Entry #25) be
GRANTED and Plaintiff's counsel be
awarded fees in the amount of $19, 012.63 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).
parties are 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 Recommendation within
fourteen (14) days will preclude appellate review of this
decision by the District Court based on the findings made