United States District Court, D. Maine
RECOMMENDED DECISION ON MOTION FOR ATTORNEY
FEES
JOHN
H. RICH III, UNITED STATES MAGISTRATE JUDGE
The
plaintiff moves for an award of attorney fees pursuant to 42
U.S.C. § 406(b) for her attorney's work in
representing her before this court and obtaining a remand of
her case to the commissioner, resulting in an award of
benefits after remand. See Plaintiff's Motion
for Award of § 406(b) Fees (“Motion”) (ECF
No. 20). As the commissioner notes, see
Defendant's Response to Plaintiff's Attorney's
Motion for Award of Attorney Fees Under 42 U.S.C. §
406(b) (“Response”) (ECF No. 21) at 2, the
plaintiff indicated at the outset of her motion that she
sought a section 406(b) award of $13, 000.00, and at the
conclusion that she sought an award of $10, 811.00,
see Motion at 1, 5. The commissioner construes the
motion to request $10, 811.00, which she argues is consistent
with the contingency fee agreement between the plaintiff and
her attorney, and, as so construed, does not oppose the
request. See Response at 2-3. The plaintiff filed no
reply brief, tacitly conceding the point. I agree that the
fee request, as so construed, is reasonable, and,
accordingly, recommend that the court grant the motion and
award $10, 811.00 in section 406(b) attorney fees.
I.
Discussion
Section
406 provides, in relevant part:
Whenever a court renders a judgment favorable to a claimant
under this subchapter [i.e., Title II] 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).
This
court has authority to award court-related fees pursuant to
section 406(b), even though the benefits award was made by
the commissioner on remand. See, e.g., Horenstein v.
Sec'y of Health & Human Servs., 35 F.3d 261, 262
(6th Cir. 1994) (overruling “single tribunal
rule” of Webb v. Richardson, 472 F.2d 529 (6th
Cir. 1972), pursuant to which only the tribunal that
ultimately upheld a claim for benefits could approve and
certify payment of section 406 attorney fees; joining
majority of circuits-including the First Circuit-in ruling,
inter alia, that “in cases where the court
remands the case back to the [commissioner] for further
proceedings, the court will set the fee-limited to 25 percent
of past-due benefits-for the work performed before it, and
the [commissioner] will award whatever fee the [commissioner]
deems reasonable for the work performed on remand and prior
administrative proceedings.”).
The
making of an application for an award of attorney fees
pursuant to the Equal Access to Justice Act
(“EAJA”) does not preclude an award of attorney
fees pursuant to section 406(b). However, a claimant's
attorney must refund the smaller of the EAJA fee or the
section 406(b) fee to the claimant. See, e.g., Gisbrecht
v. Barnhart, 535 U.S. 789, 796 (2002) (“Congress
harmonized fees payable by the Government under EAJA with
fees payable under § 406(b) out of the claimant's
past-due Social Security benefits in this manner: Fee awards
may be made under both prescriptions, but the claimant's
attorney must refund to the claimant the amount of the
smaller fee.”) (citation and internal punctuation
omitted).
This
court has a duty to satisfy itself that a section 406(b)
contingency fee is “reasonable[.]” Id.
at 807 (“Most plausibly read, . . . § 406(b) does
not displace contingent fee arrangements as the primary means
by which fees are set for successfully representing Social
Security benefits claimants in court. Rather, § 406(b)
calls for court review of such arrangements as an independent
check, to assure that they yield reasonable results in
particular cases. Congress has provided one boundary line:
Agreements are unenforceable to the extent that they provide
for fees exceeding 25 percent of past-due benefits. Within
the 25 percent boundary, . . . the attorney for the
successful claimant must show that the fee sought is
reasonable for the services rendered.”) (citations and
footnotes omitted).
Judge
Hornby of this court has observed that
“Gisbrecht has told us that the percentage
contingency fee is the default.” Siraco v.
Astrue, 806 F.Supp.2d 272, 280 (D. Me. 2011). Typically,
when “[t]here is no suggestion that [a Social Security]
case was obviously an inordinately easy case from the outset
and that the success was not due to the law firm's
efforts, or that its success was attributable to some other
source[, ] . . . [t]hat should be the end of the
matter.” Id. at 277.
That is
the case here. The Notice of Award from the Social Security
Administration specifies that 25 percent of the retroactive
award of $67, 244.00 is $16, 811.11. Notice of Award (ECF No.
20-1), attached to Motion, at 4. The plaintiff's attorney
was awarded $6, 000.00 of that sum pursuant to 42 U.S.C.
§ 406(a) for work performed on her behalf at the agency
level. See Motion at 1 n.1; Notice of Award at 3.
The $10, 811.00 sought pursuant to section 406(b) for work
performed in this court, added to the $6, 000.00 paid in
section 406(a) fees, essentially equals the contingency fee
amount withheld.[1] There is no suggestion that this case was
inordinately easy from the outset or that its success was not
due to the plaintiff's attorney's efforts. Finally,
the plaintiff's attorney has acknowledged his duty to
refund to the plaintiff the fee in the amount of $3, 450.27
previously awarded under the EAJA in this case. See
Motion at 5; ECF No. 19.
II.
Conclusion
For the
foregoing reasons, I recommend that the Motion, as construed
to request the sum of $10, 811.00, be
GRANTED, resulting in an attorney fee award
pursuant to 42 U.S.C. ยง 406(b) of $10, 811.00, with the
proviso that the plaintiff's counsel be directed to ...