United States District Court, N.D. Oklahoma
OPINION AND ORDER
H. McCARTHY, UNITED STATES MAGISTRATE JUDGE
Counsel's Motion for Attorney Fees under 42 U.S.C. §
406(b), [Dkt. 32], is before the court. The Commissioner has
declined to assert a position on the reasonableness of
Plaintiff's motion. [Dkt. 33]. Counsel has certified that
Plaintiff has been advised of the fee request, and Plaintiff
has expressed she does not object to the requested fee award.
March 26, 2018, the court remanded this case to the
Commissioner for further administrative action. [Dkt. 22]. On
June 11, 2018, the court granted Plaintiff's
counsel's Motion for EAJA fees, [Dkt 24], in the amount
of $4, 598.90 because the case was reversed, not for legal
error, but because the decision was not supported by
substantial evidence. [Dkt. 27]. However, on August 1, 2018,
the EAJA fees were diverted in total by the Treasury
Department to pay for Plaintiff's delinquent school bill.
Thus, no EAJA fees have been paid to counsel.
Notice of Award dated February 6, 2016 indicated that the
agency withheld $16, 661.63 for payment of 406(b) attorney
fees, $6, 000.00 of which was paid to counsel for work
performed before the agency. [Dkt. 32-2, p. 2]. The amount of
$10, 661.63 continues to be held by the agency.
Plaintiff's counsel seeks attorney fees in the amount of
$10, 661.63 which is not more than twenty five percent of the
past due DIB and SSI benefits Plaintiff was awarded on remand
which totaled $66, 646.52.
McGraw v. Barnhart, 450 F.3d 493, 496 (10th Cir.
2006), the Court ruled that attorney fees are awardable under
42 U.S.C. § 406(b)(1) when the Social Security
Administration awards disability benefits to a claimant
following a remand from the federal court. In such a
circumstance the authority of Fed.R.Civ.P. 60(b)(6) is
employed to allow counsel to seek fees under § 406(b)(1)
long after the usual fourteen days allotted by Fed.R.Civ.P.
54((d)(2)(B)(I) for filing a motion for attorney fees has
expired. McGraw, 450 F.3d at 505. On December 16,
2015 the court granted counsel's motion to extend the
date for filing the motion for fees under § 406(b) until
60 days after the Notice of Award was issued. [Dkt. 44]. The
motion for fees is timely filed.
U.S.C. § 406(b)(1)(A) provides that a court may award
“a reasonable fee . . . no t in excess of 25 percent of
the . . . past due benefits” awarded to the claimant.
The fee is payable “out of, and not in addition to, the
amount of the [the] past-due benefits.” Section
406(b)(1)(A) does not replace contingency fee agreements
between Social Security claimants and their counsel. Instead,
that section requires the district court to review
contingency fee agreements as an “independent
check” to assure that the agreement yields a reasonable
result. Gisbrecht v. Barnhart, 535 U.S. 789, 807,
22 S.Ct. 1817');">122 S.Ct. 1817, 1828, 152 L.Ed.2d 996 (2002). Section 406(b)
provides a boundary that agreements are unenforceable to the
extent that they provide for fees exceeding 25 percent of the
past-due benefits. Id.
court concludes that the requested fee award of $10, 661.63
which is less than 25% of the amount of back benefits
Plaintiff will receive is reasonable. That award comports
with the contract between counsel and Plaintiff and is within
the statutory limits of §406(b). The fee yields an
hourly rate of approximately $491.32 per hour for 21.7 hours
of work performed before the district court, which does not
amount to a windfall. Often a fee recovery in a
percentage-based contingency fee contract will be higher than
the fee produced by a straight hourly rate agreement. That
circumstance serves to induce attorneys to risk providing
legal services in cases where they may not be paid. Because
Counsel's previously awarded EAJA fees were diverted by
the Treasury Department, there are no EAJA fees to be
returned to Plaintiff in accordance with Weakley v.
Brown, 2d 575');">803 F.2d 575, 580 (10th Cir. 1986).
Counsel's Motion for Attorney Fees Under 42 U.S.C. §