United States District Court, W.D. Oklahoma
MEMORANDUM OPINION AND ORDER
T. ERWIN UNITED STATES MAGISTRATE JUDGE
matter is before the Court on Plaintiff's Motion for
Attorney Fees Under 42 U.S.C. § 406(b), seeking an
attorney fee in the total amount of $14, 475.87. (ECF No.
24). The Commissioner has responded with no objections (ECF
No. 26). The response effectively MOOTS the pending Motion
for Extension of Time (ECF No. 25).
Lisa Hillier retained the Mitzner Law Firm to appeal the SSA
denial of her application for disability insurance benefits.
(ECF No. 24-1). The contract between Ms. Hillier and Miles L.
Mitzner provided for payment of an attorney fee contingent
upon Ms. Hillier prevailing before the federal court and
ultimately being awarded benefits by the SSA. Under the
contract, Ms. Hillier agreed to an attorney fee in the amount
of twenty-five percent (25%) of any past-due benefits
awarded. See ECF No. 24-1.
prevailed in federal court. In an Order and Judgment dated
July 5, 2018 the Court reversed the decision of the SSA and
remanded the case for further administrative findings. (ECF
Nos. 18 & 19). On remand, Plaintiff was awarded past-due
benefits of $57, 903.50 from which the SSA withheld $6,
000.00 for payment to Ms. Hillier's lawyer. See
ECF No. 24-2:3. Pursuant to 42 U.S.C. §406(b) and citing
the contractual agreement between the parties and
Gisbrecht v. Barnhart, Plaintiff requests an
attorney fee award in the total amount of $14, 475.87 which
represents twenty-five percent (25%) of the past-due benefits
awarded. (ECF No. 24-1:1)
FEES FOR REPRESENTATION
has prescribed specific limitations on the amount of fees
which may be awarded for representation of Social Security
claims. See 42 U.S.C. § 406. Section 406
“deals with the administrative and judicial review
stages discretely: § 406(a) governs fees for
representation in administrative proceedings; § 406(b)
controls fees for representation in court.”
Gisbrecht v. Barnhart, 535 U.S. 789, 794 (2002).
Subsection 406(b) provides:
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). Any such payment must be made
“out of, and not in addition to, ” the past-due
benefits owed to the claimant. Id. 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. at 789. 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. If attorney fees are also
awarded under EAJA, Plaintiff's counsel is to refund the
smaller amount to Plaintiff. Weakley v. Bowen, 803
F.2d 575 (10th Cir. 1986).
AWARD OF §406(b) FEES
Mitzner has requested §406(b) fees in the amount of $14,
475.87 and has attached a detailed billing summary reflecting
a total of 30.10 hours expended at the judicial level, but
does not include a statement of the lawyer's normal
hourly billing rate for non-contingent-fee cases. However,
the amount requested does not exceed twenty-five percent
(25%) of the total awarded past-due benefits, which would
equal $14, 475.87. The Court has reviewed the file and finds
this amount to be reasonable.
PLAINTIFF'S AWARD OF ATTORNEY FEES UNDER THE EQUAL ACCESS
TO JUSTICE ACT (EAJA)
October 18, 2018 Plaintiff was awarded EAJA attorney fees in
the amount of $5, 000.00 as the prevailing party.
See ECF No. 21. Plaintiff's attorney therefore
must refund the lesser of the two fees to ...