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 Mitzner,
Counsel for Plaintiff.1 (Docket Entry #21). 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 $20, 487.75. 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 1 While the
Motion is purportedly filed by Plaintiff, seeking
§406(b) relief lies 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 October 11, 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 his services, Plaintiff's counsel was awarded EAJA
fees in the amount of $5, 186.30. On remand, Plaintiff
received a favorable decision from Defendant and was awarded
past due benefits in the amount of $81, 951.00.
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).
states that it generally does not take a position in the
province of a plaintiff's attorney and not a plaintiff.
on awarding the amount requested but does concede that it has
no objection to an award of §406(b) fees which do not
exceed 25% of past due benefits. 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
10, 2019. Counsel filed the subject Motion on April 16, 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 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
Mitzner, Counsel for Plaintiff (Docket Entry #21) be
GRANTED and Plaintiff's counsel be
awarded fees in the amount of $20, 487.75 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 ...