Filed: Jan. 03, 2019
Latest Update: Jan. 03, 2019
Summary: MEMORANDUM OPINION AND ORDER SHON T. ERWIN , Magistrate Judge . This matter is before the Court on Plaintiff's: (1) Motion for Attorney Fees Under 42 U.S.C. 406(b), seeking an award in the amount of $25,000.00 and (2) Motion for Award of Attorney's Fees Under the Equal Access to Justice Act (EAJA), seeking an award in the amount of $7,013.80. (ECF Nos. 26 & 27). The Commissioner has responded to the 406(b) motion, and does not object. (ECF No. 28). Construing the 406(b) motion as filed
Summary: MEMORANDUM OPINION AND ORDER SHON T. ERWIN , Magistrate Judge . This matter is before the Court on Plaintiff's: (1) Motion for Attorney Fees Under 42 U.S.C. 406(b), seeking an award in the amount of $25,000.00 and (2) Motion for Award of Attorney's Fees Under the Equal Access to Justice Act (EAJA), seeking an award in the amount of $7,013.80. (ECF Nos. 26 & 27). The Commissioner has responded to the 406(b) motion, and does not object. (ECF No. 28). Construing the 406(b) motion as filed ..
More
MEMORANDUM OPINION AND ORDER
SHON T. ERWIN, Magistrate Judge.
This matter is before the Court on Plaintiff's: (1) Motion for Attorney Fees Under 42 U.S.C. § 406(b), seeking an award in the amount of $25,000.00 and (2) Motion for Award of Attorney's Fees Under the Equal Access to Justice Act (EAJA), seeking an award in the amount of $7,013.80. (ECF Nos. 26 & 27). The Commissioner has responded to the §406(b) motion, and does not object. (ECF No. 28). Construing the §406(b) motion as filed pursuant to Fed.R.Civ.P. 60(b)(6),1 and in light of Gisbrecht v. Barnhart, 535 U.S. 789, 807 (2002) and for the reasons set forth below, the Court GRANTS the §406(b) motion, (ECF No. 26) and STRIKES the EAJA fee request (ECF No. 27).
I. PROCEDURAL BACKGROUND
Plaintiff Kenneth Housh retained the Hedrick law firm to appeal the SSA denial of his application for disability insurance benefits. (ECF No. 26-1). The contract between Mr. Housh and the Hedrick law firm provided for payment of an attorney fee contingent upon Mr. Housh prevailing before the federal court and ultimately being awarded benefits by the SSA. (ECF No. 26-1). Under the contract, Mr. Housh agreed to an attorney fee in the amount of twenty-five percent of any past-due benefits awarded. See ECF No. 26-1.
Plaintiff prevailed in federal court. In an Order and Judgment dated August 31, 2018, the Court reversed the decision of the SSA and remanded the case to the Commissioner for an immediate award of benefits. (ECF Nos. 22 & 23). On remand, Plaintiff was awarded past-due benefits totaling $190,590.00. (ECF No. 26-2). Pursuant to 42 U.S.C. §406(b), and citing to the contractual agreement between the parties and Gisbrecht v. Barnhart, Plaintiff requests a fee award in the amount of $25,000.00. (ECF No. 26).
II. FEES FOR REPRESENTATION
Congress 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).
III. AWARD OF §406(b) FEES
Ms. Hedrick has requested §406(b) fees in the amount of $25,000.00, and has attached a detailed billing summary reflecting 5.3 hours of work performed in 2017 and 29.7 hours of work performed in 2018. (ECF No. 26-3). The amount requested reflects less than 25% of the total awarded past-due benefits, which would equal $47,647.50, and is, therefore, in line with both the contractual agreement and § 406(b). Based on the parties' submissions, the Court finds this amount to be reasonable.
IV. PLAINTIFF'SEAJAMOTION
As stated, Plaintiff has contemporaneously filed a separate motion for fees under EAJA. See ECF No. 27. But because the EAJA fee reflected a lesser amount than that requested in the §406(b) motion, Plaintiff's attorney agreed to withdraw the EAJA motion if the Court agreed to a §406(b) award in the amount requested. (ECF No. 26:13-14). In light of the Commissioner's lack of objection to the requested §406(b) award and the Court's award of the requested amount, the Court will strike Plaintiff's EAJA fee motion as moot.
ORDER
The Court GRANTS Plaintiff's Motion for Attorney Fees Under 42 U.S.C. § 406(b), (ECF No. 26) and STRIKES Plaintiff's EAJA Motion (ECF No. 27) as MOOT. Plaintiff's attorney, Melissa Hedrick, is awarded attorney's fees in the amount of $25,000.00, to be paid out of the past-due benefits Plaintiff received by reason of the remand and favorable decision in this case. See 42 U.S.C. 406(b)(1)(A). The SSA shall pay this amount directly to: Melissa S. Hedrick, Hedrick Law Firm, 3721 N. Classen Blvd., Oklahoma City, OK 73118.
