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 Attorney
Fees Under 42 U.S.C. § 406(b) filed by Gayle Troutman of
the firm Troutman & Troutman, PC, Counsel for Plaintiff
(Docket Entry #22). 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 she be awarded fees for legal work pursuant to
42 U.S.C. § 406(b) in the amount of $9, 293.85. 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
Plaintiff's opening brief. Thereafter, Defendant filed an
unopposed Motion to Remand Pursuant to Sentence Four of 42
U.S.C. § 405(g). By Order and Judgment entered September
5, 2017, Judge Payne granted the Motion, reversed
Defendant's decision, and ordered that the case be
remanded for further proceedings. As a result,
Plaintiff's counsel successfully obtained a reversal of
the adverse decision and remand. In compensation for her
services, Plaintiff's counsel was awarded EAJA fees in
the amount of $4, 656.60. On remand, Plaintiff received a
favorable decision from Defendant and was awarded past due
benefits in the amount of $42, 549.00.
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). Indeed, the fees requested
under' 406(b) by counsel only represents approximately
21.8% of the past due benefits awarded.
states that it generally does not take a position on awarding
the amount requested but does concede that it has no
objection to the award. 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.
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 April
29, 2019. Counsel filed the subject Motion on May 7, 2019.
This Court concludes that counsel was diligent and timely in
filing the request for' 406(b) compensation.
THEREFORE THE RECOMMENDATION OF THIS COURT that the Motion
for Attorney Fees Under 42 U.S.C. § 406(b) filed by
Gayle Troutman of the firm Troutman & Troutman, PC,
Counsel for Plaintiff (Docket Entry #22) be
GRANTED and Plaintiff's counsel be
awarded fees in the amount of $9, 293.85 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 is 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). The parties are herewith 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 ...