United States District Court, N.D. Oklahoma
OPINION AND ORDER
H. MCCARTHY, United States Magistrate Judge.
motion filed by Plaintiff's counsel to Alter or Amend the
Court's Order dated October 17, 2018, Awarding Attorney
Fees Under 42 U.S.C. § 406(b), [Dkt. 29], is before the
court. The Commissioner filed a response brief and no reply
brief has been filed.
motion for fees under §406(b) sought $22, 895 in fees
for representation of Plaintiff before this court. [Dkt. 22,
23]. The court, having reviewed the motion, accompanying
brief, and the Notice of Award from the Social Security
Administration concluded that an attorney fee award of $17,
636.25 was reasonable. That amount constituted 25% of the
past due benefits paid to Plaintiff, as the Notice of Award
reflected Plaintiff received a past due benefit check of $70,
545. The court noted that the award of $17, 636.25 resulted
in an hourly rate of $844 per hour for 20.9 hours of work.
instant motion requests that the court amend its order to
award the full $22, 895 originally sought. Counsel points out
that, although the Notice of Award reflects that Plaintiff
received a check for $70, 545, the total amount of past due
benefits includes the $22, 895 withheld by the Commissioner
for payment of attorney fees. Counsel calculated the past due
benefits using the dates, amount per month, and cost of
living adjustments outlined in the Notice of Award, [Dkt.
22-2, p. 6], and arrived at a past due benefit amount of $91,
580, 25% of which is $22, 895. [Dkt. 29]. Counsel requests
that the court issue an order that alters or amends the
previous order to show that counsel is entitled to receive
is reminded that the burden to prove the requested fee is
reasonable is on the attorney seeking the fee. Gisbriecht
v. Barnhart, 535 U.S. 789, 808, 22 S.Ct. 1817');">122 S.Ct. 1817, 1828,
152 L.Ed.2d 966 (2002). In the initial motion and brief,
counsel failed to perform the necessary calculations to
provide the court a basis for awarding the amount requested.
It was counsel's responsibility in the first instance to
perform those calculations.
requested fee award of $22, 895 results in an hourly rate of
$1, 095.45 per hour for 20.9 hours of work. This rate is high
but does not amount to a windfall due to the contingent
nature of the fee award. The fee award of $22, 895 is within
the 25% limit for attorney fees. When the amount of the EAJA
award of $3, 800 is returned to Plaintiff as required by
Weakley v. Brown, 2d 575');">803 F.2d 575, 580 (10th Cir.
1986), the net out of pocket expense for attorney fees is 21%
of Plaintiffs past due benefits.
Motion To Alter Or Amend The Court's Order Dated October
17, 2018, Awarding Attorney Fees Under 42 U.S.C. §
406(b), [Dkt. 29], is GRANTED. Counsel is awarded $22, 895 to
be awarded from Plaintiff's past due benefits. Counsel is