The opinion
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
STARLA J. BROWN, )
)
Plaintiff, )
)
v. ) Case No. CIV-19-095-KEW
)
COMMISSIONER OF THE SOCIAL )
SECURITY ADMINISTRATION, )
)
Defendant. )
OPINION AND ORDER
This matter comes before this Court on the Motion for Attorney
Fees Pursuant to 42 U.S.C. § 406(b) filed by Timothy White, the
attorney for Plaintiff (Docket Entry #28). Counsel requests that
he be awarded fees for legal work pursuant to 42 U.S.C. § 406(b)
in the amount of $12,688.25. Counsel was employed by Plaintiff to
appeal the adverse decision rendered by the 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).
Plaintiff’s counsel filed an opening brief and a reply brief
on her behalf. Counsel successfully obtained a reversal and remand
to Defendant for further proceedings. In compensation for his
services, Plaintiff’s counsel was awarded EAJA fees in the amount
of $7,000.00. On remand, the ALJ entered a fully favorable decision
and awarded past due benefits of $74,753.00.
The 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 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).
Defendant states that it generally does not take a position
on awarding the amount requested but concedes 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
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Circuit to do so and finds the time expended to be reasonable and
necessary in consideration of the result obtained.
Additionally, 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).
In this case, the Notice of Award was issued by Defendant on
August 14, 2021. Counsel filed the subject Motion on March 28,
2022. Although counsel failed to file for an extension under Rule
60(b) or explain the filing delay in his Motion, this Court cannot
find that the delay in filing warrants the draconian result of
denying an award of fees. Therefore, the request is considered
timely.
IT IS THEREFORE ORDERED the Motion for Attorney Fees Pursuant
to 42 U.S.C. § 406(b) filed by Timothy White, the attorney for
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Plaintiff (Docket Entry #28), is hereby GRANTED. Plaintiff’s
counsel is awarded fees in the amount of $12,688.25. Defendant is
directed to pay this fee directly to counsel from the amount of
past due benefits withheld for that purpose. In addition,
Plaintiff’s counsel shall 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).
IT IS SO ORDERED this 10th day of June, 2022.
______________________________
KIMBERLY E. WEST
UNITED STATES MAGISTRATE JUDGE
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