United States District Court, D. New Mexico
ORDER GRANTING PLAINTIFF'S MOTION FOR SECTION
LOURDES A. MARTÍNEZ UNITED STATES MAGISTRATE JUDGE
MATTER is before the Court on Plaintiff's Motion for
Order Authorizing Attorney Fees Pursuant to 42 U.S.C. §
406(b) and Supporting Memorandum (Doc. 39) (hereinafter
“motion”), filed February 16, 2017, requesting
attorney fees in the amount of $18, 053.00. On February 27,
2017, Defendant filed a response to the motion, stating that
“the Commissioner is not a party to § 406(b) fee
awards and generally takes no position on such petitions.
However, to the extent that the Court requires a response,
the Commissioner has no objection to the petition in this
case.” [Doc. 40 at 1-2]. Plaintiff did not
file a reply to Defendant's response and, on March 3,
2017, filed a notice that briefing of the motion was
complete. [Doc. 41]. Having considered the motion,
response, relevant law, and the record in this case, and
being otherwise fully advised, the Court finds that the
motion should be GRANTED.
filed her complaint in this action on March 9, 2015 (Doc.
1) and, after one unopposed motion to extend her brief
deadline (Doc. 18), Plaintiff filed her motion to
reverse and remand (Doc. 21) on August 21, 2015.
Also after one unopposed motion for extension of time
(Doc. 22), Defendant filed a response on November
19, 2015 (Doc. 25). Plaintiff filed a reply in
support of the remand motion on December 4, 2015. [Doc.
26]. On March 1, 2016, the Court granted Plaintiff's
motion and remanded the case to the Commissioner for further
proceedings. [Doc. 28]. On May 30, 2016, Plaintiff
filed a motion for attorney fees pursuant to the Equal Access
to Justice Act, 28 U.S.C. § 2412 (hereinafter,
“EAJA”), in the amount of $6, 650.00. [Doc.
30]. On June 13, 2016, Defendant opposed Plaintiff's
EAJA motion on the ground that “the Commissioner's
position was substantially justified.” [Doc.
31 at 1]. After two unopposed motions to extend the
filing deadline (Docs. 32 and 34),
Plaintiff filed a reply in support of her motion on July 15,
2016 (Doc. 36). Plaintiff's EAJA motion was
granted by this Court on August 11, 2016, in the amount
requested. [Doc. 38].
August 23, 2016, Plaintiff received a fully favorable
decision from the Social Security Administration
(hereinafter, “SSA”). [Doc. 39-1 at 1].
A November 13, 2016 “Notice of Award” indicates
that Plaintiff's “past-due Social Security benefits
are $96, 212.00 for the period from July 2010 through August
2016. [Doc. 39-2 at 3]. The notice also indicates
that 25% of the past-due benefits, or $24, 053.00, had been
withheld from Plaintiff's benefits for payment of
Plaintiff's counsel, and that the SSA had approved the
fee agreement between Plaintiff and her lawyer that entitled
counsel to $6, 000.00 for his work on Plaintiff's behalf
before the agency. Id.
to 42 U.S.C. § 406(b), and a prior contingent fee
agreement with Plaintiff (Doc. 39-2 at 10),
Plaintiff's counsel now requests attorney's fees in
the amount of $18, 053.00 for time spent representing
Plaintiff before this Court. [Doc. 39 at 1].
Together, the award of a $6, 000.00 fee by the SSA, pursuant
to § 406(a), and fees in the amount of $18, 053.00
requested from this Court, pursuant to § 406(b), total
$24, 053.00, which is 25% of the past-due benefits awarded to
Plaintiff by the SSA.
counsel is entitled to an award of attorney's fees
pursuant to 42 U.S.C. § 406(b) even though
Plaintiff's past-due benefits were obtained following
remand to the Commissioner. See McGraw v. Barnhart,
450 F.3d 493, 496 (10th Cir. 2006) (“[W]hen the court
remands a Title II Social Security disability case for
further proceedings and the Commissioner ultimately
determines that the claimant is entitled to an award of
past-due benefits[, ] [w]e conclude that § 406(b)(1)
does permit an award of counsel fees under these
circumstances[.]”). The Court must ensure that the
attorney's fees awarded to Plaintiff's counsel
pursuant to 42 U.S.C. § 406(b)(1) are reasonable.
See Wrenn v. Astrue, 525 F.3d 931, 938 (10th Cir.
2008). Additionally, an attorney's fee award under §
406(b) for court representation may not exceed twenty five
percent of the past-due benefits awarded to Plaintiff, and is
payable “out of, and not in addition to, the amount of
such past-due benefits.” See 42 U.S.C. §
the fee requested by Plaintiff's counsel under Section
406(b), i.e., $18, 053.00, does not exceed
twenty-five percent of the past-due benefits awarded to
Plaintiff. The record indicates that Plaintiff's counsel
provided quality representation to Plaintiff, was not
responsible for any undue delay in the resolution of this
matter, and expended at least 35 hours representing Plaintiff
before this Court. See [Doc. 39-2 at 7-8].
The record further indicates that Plaintiff and her counsel
entered into a contingent fee agreement that provides that
the fee for Plaintiff's counsel would be twenty-five
percent (25%) of any past-due benefits awarded either by the
Court or by the SSA following remand by the Court.
Id. at 10. The Court finds that the amount of
past-due benefits awarded to Plaintiff was not so large in
comparison to the time expended by her counsel as to require
a further reduction of fees. See Gisbrechtv.
Barnhart, 535 U.S. 789, 808 (2002) (explaining that the
court should consider whether “the benefits are large
in comparison to the amount of time counsel spent on the
case”). In addition, the Court finds that there has
been no undue delay in the filing of this motion for Section
406(b)(1) fees, and it was filed within a reasonable time
after the Commissioner's decision awarding past-due
benefits. See McGraw, 450 F.3d at 505 (“A
motion for award of fees under § 406(b)(1) should be
filed within a reasonable time of the Commissioner's
decision awarding benefits.”) (citation omitted). The
Commissioner's decision awarding past-due benefits was
issued November 13, 2016, and this motion was filed February
16, 2017, which the Court finds reasonable. See Id.
(stating that decisions on motions for Section 406(b) fees
“are committed to the district court's sound
discretion”) (citation omitted); see also Early v.
Astrue, No. 07-6294, 295 Fed.Appx. 916, 918-19, 2008 WL
4492602 (10th Cir. Oct. 8, 2008) (unpublished) (upholding the
district court's decision that a fifteen-month delay in
filing a motion for Section 406(b) fees after the
Commissioner's decision awarding past-due benefits was
unreasonable). Finally, the Court finds that the
attorney's fees in the amount of $18, 053.00 requested by
Plaintiff's counsel pursuant to 42 U.S.C. § 406(b)
the amount of the attorney's fees awarded Plaintiff
pursuant to the EAJA, i.e., $6, 650.00, was smaller
than the amount of the attorney's fees to be awarded
Plaintiff's counsel pursuant to 42 U.S.C. § 406(b),
i.e., $18, 053.00, the amount of the EAJA fees must
be refunded to Plaintiff. See Gisbrecht, 535 U.S. at
796 (“Congress harmonized fees payable by the
Government under EAJA with fees 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 ‘refun[d] to the
claimant the amount of the smaller fee.'”).
THEREFORE ORDERED that Plaintiffs Motion for Order
Authorizing Attorney Fees Pursuant to 42 U.S.C. § 406(b)
and Supporting Memorandum (Doc. 39) is GRANTED and
Plaintiffs counsel is awarded attorney's fees in this
matter in the amount of $18, 053.00, pursuant to 42 U.S.C.
FURTHER ORDERED that, upon payment of the Section 406(b) fee,
Plaintiffs counsel shall promptly refund to Plaintiff the
amount of attorney's fees previously awarded in ...