United States District Court, D. New Mexico
JEWEL L. WARNER, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.
ORDER GRANTING § 406(b) ATTORNEY FEES
MATTER is before the Court on Plaintiff's Counsel's
Motion for Order Authorizing Attorney Fees Pursuant to 42
U.S.C. § 406(b) and Supporting Memorandum, in which he
seeks an award of $8, 474.25 in attorney fees under 42 U.S.C.
§ 406(b)(1). Doc. 30. Defendant declined to
take a position with regard to the reasonableness of the
requested award. Doc. 31. Being fully advised in the
premises, the Court finds that Plaintiff's Motion is
well-taken and should be granted.
instituted an action in this Court seeking judicial review of
Defendant's denial of her application for Social Security
disability benefits. This Court reversed the decision of the
Commissioner and remanded for a new hearing and awarded EAJA
fees in the amount of $5, 150.00. See Docs.26, 29.
Nevertheless, according to Plaintiff's counsel, because
the awarded EAJA fees were subject to an offset under the
Treasury Offset Program, 31 U.S.C. § 3716(c)(3)(B), no
EAJA fees were actually received. Doc. 30 at 2.
this Court's remand, the Social Security Administration
found Plaintiff to be disabled, but withheld twenty-five
percent of those benefits, $14, 474.25, in the event that
Plaintiff's counsel were to bring a claim for attorney
fees pursuant to the retainer agreement. Plaintiff's
counsel now seeks authorization from this Court for an award
of compensation for legal services in an amount significantly
less than that withheld.
court renders a judgment favorable to a Social Security
claimant who was represented before the court by an attorney,
the court may allow “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.” 42 U.S.C. § 406(b)(1)(A). Unlike EAJA
fees, which are paid in addition to past-due benefits, §
406(b) fees are paid out of past-due benefits. Wrenn ex
rel. Wrenn v. Astrue, 525 F.3d 931, 933-34 (10th Cir.
2008). If fees are awarded under both EAJA and § 406(b),
the attorney must refund the lesser award to the claimant.
Id. at 934. The court may award fees under §
406(b) when “the court remands . . . a case for further
proceedings and the Commissioner ultimately determines that
the claimant is entitled to an award of past-due
benefits.” McGraw v. Barnhart, 450 F.3d 493-96
(10th Cir. 2006).
§ 406(b) does not prohibit contingency fee agreements,
it renders them unenforceable to the extent that they provide
for fees exceeding 25% of the past-due benefits.
Gisbrecht v. Barnhart, 535 U.S. 798, 807 (2002).
Section 406(b) also requires the court to act as “an
independent check” to ensure that fees are reasonable
even if they are less than 25% of the past-due benefits, as
there is no presumption that 25% is reasonable. Id.
at 807 n.17. Counsel has the burden of demonstrating the
reasonableness of the fees. Id. at 807. The
reasonableness determination is “based on the character
of the representation and the results the representative
achieved.” Id. at 808. Factors relevant to the
reasonableness of the fee request include: (1) whether the
attorney's representation was substandard; (2) whether
the attorney was responsible for any delay in resolution of
the case; and (3) whether the contingency fee is
disproportionately large in comparison to the amount of time
spent on the case. Id. A court may require the
claimant's attorney to submit a record of the hours spent
representing the claimant and a statement of the lawyer's
normal billing rate for non-contingency fee cases.
Id. The statute does not specify a deadline for
requesting fees. See 42 U.S.C. § 406(b). The
Tenth Circuit, however, has held that a request “should
be filed within a reasonable time of the Commissioner's
decision awarding benefits.” McGraw, 450 F.3d
case, the Court finds that the legal representation of
Plaintiff by Michael D. Armstrong was more than adequate, and
he obtained a fully favorable decision. Counsel did not delay
the proceedings before this Court. Further, the instant
Motion was filed within a reasonable time after Plaintiff
received notice of entitlement to past-due benefits. The
Court further finds that the requested fees are significantly
below the 25% permitted by the retainer agreement and
proportionate given the amount of time (29.5 hours) spent on
the case. The requested attorney fees would, therefore, be in
line with other fee awards authorized in this District under
406(b). See e.g., Armijo v. Colvin, CIV 12-0455 KBM
(Doc. 30) (awarding $7, 959.75 for 33.68 hours, or
$236.33 per hour); Marquez v. Astrue, CIV 10-1165 CG
(Doc. 30) (awarding $10, 105 for 18.9 hours, or
$529.00 per hour); Dimas v. Astrue, CIV 03-1157 RHS
(Doc. 34) (awarding $17, 000 for 38.26 hours or
$444.23 per hour). Having performed its “independent
check” duties, the Court finds the requested award to
be both appropriate and reasonable.
HEREBY ORDERED that Plaintiffs counsel's Motion for
attorney fees under § 406(b) is granted. The Court
hereby authorizes $8, 474.25 in attorney fees for legal
services rendered in United States District Court, to be paid
by the Social Security Administration. Should any EAJA ...