United States District Court, W.D. Oklahoma
SHELLY A. FULKERSON, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
CHARLES B. GOODWIN, United States District Judge.
before the Court are two Motions filed through counsel by
Plaintiff Shelly A. Fulkerson. First, pursuant to Rule
60(b)(6) of the Federal Rules of Civil Procedure, Plaintiff
requests authorization for Plaintiff's counsel, Mr. Kyle
J. Saunders, to seek attorney's fees under 42 U.S.C.
§ 406(b)(1). See Pl.'s R. 60(b)(6) Mot.
(Doc. No. 24) at 1-4; J. (Doc. No. 21) at 1 (Mar. 26, 2018);
McGraw v. Barnhart, 450 F.3d 493, 504-05 (10th Cir.
2006). Second, assuming the granting of her first request,
Plaintiff moves for an award of attorney fees in the amount
of $10, 000.00 under 42 U.S.C. § 406(b). See
Pl.'s Br. (Doc. No. 25).
March 26, 2018, the Court entered Judgment reversing the
Acting Commissioner's final decision denying
Plaintiff's application for disability insurance benefits
and remanding this case for further administrative
proceedings under the fourth sentence of 42 U.S.C. §
405(g). See J. at 1. Plaintiff's counsel now
informs the Court that on December 7, 2018, an Administrative
Law Judge issued a “Fully Favorable” written
decision “finding Plaintiff disabled as of August 29,
2013.” Pl.'s R. 60(b)(6) Mot. at 2; see
Pl.'s R. 60(b)(6) Mot. Ex. 1 (Doc. No. 24-1) at 1-9.
Plaintiff further informs the Court that the Commissioner has
“issued an award letter showing past-due benefits of
$64, 650.50 with $16, 160.13 withheld for payment of attorney
fees.” Pl.'s R. 60(b)(6) Mot. at 2; Pl.'s R.
60(b)(6) Mot. Ex. 2 (Doc. No. 24-2) at 1-5. Plaintiff now
requests authorization from the Court to seek attorney's
fees under 42 U.S.C. § 406(b)(1) in the amount of $10,
000.00. See Pl.'s R. 60(b)(6) Mot. at 2-3.
Whenever a court renders a judgment favorable to a claimant
under this subchapter who was represented before the court by
an attorney, the court may determine and allow as part of its
judgment a reasonable fee for such representation, not in
excess of 25 percent of the total of the past-due benefits to
which the claimant is entitled by reason of such judgment . .
42 U.S.C. § 406(b)(1)(A). This subsection “does
not displace contingent-fee agreements as the primary means
by which fees are set for successfully representing Social
Security benefits claimants in court” so long as the
agreed-upon amount stays within the statute's “25
percent boundary.” Gisbrecht v. Barnhart, 535
U.S. 789, 807 (2002). And for a fee request that lies within
this boundary, “the attorney for the successful
claimant” still “must show that the fee sought is
reasonable for the services rendered.” Id.
light of the developments in this case, and the authorities
set forth above, the Court finds that “[s]ubstantial
justice will be served by allowing counsel to seek §
406(b)(1) fees under the authority of Rule 60(b)(6).”
McGraw, 450 F.3d at 505. Accordingly,
Plaintiff's Rule 60(b)(6) Motion (Doc. No. 24) is
Plaintiff's request for $10, 000.00 in fees, the Acting
Commissioner has responded that she has no objection to this
request. See Def.'s Resp. (Doc. No. 26) at 1-2.
The Acting Commissioner notes, however, that the Court
previously awarded $4800.00 in attorney's fees pursuant
to the Equal Access to Justice Act (“EAJA”), 28
U.S.C. § 2412, so if fees are now awarded pursuant to
§ 406(b), Mr. Saunders must refund the lesser award to
Plaintiff. See id.; Order of June 8, 2018 (Doc. No.
23) at 1-2; McGraw, 450 F.3d at 497 & n.2.
carefully reviewed the Motion for Attorney Fees and
supporting documentation, the Court finds that $10, 000.00 is
a reasonable fee award for the work performed in this case in
view of the contingent nature of the representation, the
applicable attorney-fee agreement, and the results achieved.
While before the Court, Mr. Saunders filed a detailed opening
brief, presenting a well-supported argument that the
administrative law judge erred in denying Plaintiff's
disability insurance benefits claim. See Doc. No.
13. The Acting Commissioner filed a brief in opposition,
which Mr. Saunders was required to review. See Doc.
No. 18; Pl.'s Br. Ex. 4 (Doc. No. 25-4) at 1. Mr.
Saunders represents that he spent 27.40 hours litigating
Plaintiff's disability case in federal court (not
including time spent on attorney-fee issues), which would
result in an effective hourly rate of $364.96 with respect to
the requested § 406(b) fee. See Pl.'s Br.
Ex. 4 at 2; Pl.'s Br. at 11-14; see Gisbrecht,
535 U.S. at 793, 808 (rejecting the “lodestar”
method of calculating fee awards under § 406(b) but
noting that the district court may consider the hours spent
and other factors in contingency-fee cases to help assess
“the reasonableness of the fee yielded by the fee
agreement”). Plaintiff and Mr. Saunders agreed that the
latter may collect attorney's fees “for
representation before the court” in an amount equal to
the greater of (i) 25 percent “of the past-due benefits
resulting from” Plaintiffs claim, or (ii) any fee
awarded pursuant to the EAJA. Pl.'s Br. Ex. 1 (Doc. No.
25-1) at 1. The requested fee award is 15 percent of the
past-due benefits awarded to Plaintiff and thus an amount
contemplated by the written agreement between Plaintiff and
Mr. Saunders. See Pl.'s Br. at 9, 11; Pl.'s
Br. Ex. 1 at 1.
Plaintiffs Motion for Attorney Fees (Doc. No. 25) is GRANTED,
and Mr. Kyle J. Saunders is awarded attorney's fees in
the amount of $10, 000.00. See 42 U.S.C. §
406(b)(1)(A). The Social Security Administration shall pay
this amount directly to Plaintiffs attorney: Kyle J.
Saunders, P.O. Box 1605, Ada, Oklahoma, 74820. Mr. Saunders
shall promptly refund to Plaintiff Shelly A. Fulkerson the
$4800.00 in attorney's fees that the Court previously
awarded under 28 U.S.C. § 2412. See Order of
June 8, 2018, at 1-2; McGraw, 450 F.3d at 497 &
 Though Plaintiff's request for an
award of attorney fees under 42 U.S.C. § 406(b) is
styled as a brief, see Pl.'s Br. at 1, the
substance reflects that the filing is both a motion for fees
under § ...