United States District Court, D. New Mexico
PROPOSED FINDINGS AND RECOMMENDED
MATTER comes before the Court on Plaintiff's Motion for
Attorney Fees Pursuant to 42 U.S.C. § 406(b). Doc. 34.
This matter was referred to me on May 9, 2017. Doc. 37. In
the Motion, Plaintiff requests attorney's fees in the
amount of $18, 007.00. Defendant represents that because
awards under Section 406(b) are paid from the claimant's
benefits and not from agency funds, Defendant is not an
interested party to Plaintiff's Motion and accordingly
takes no position on the requested relief. After reviewing
Plaintiff's Motion and otherwise being fully advised in
the premises, I recommend finding 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 his application for Social Security
disability benefits. Doc. 1. On September 9, 2015, I
recommended that Plaintiff's Motion to Reverse and Remand
be granted. Doc. 28. On September 29, 2015, United States
District Judge Robert C. Brack agreed with my recommendation
and entered an Order granting Plaintiff's Motion. Doc.
29. Pursuant to a subsequent stipulation by the parties,
Judge Brack awarded Plaintiff $6, 700 in attorney's fees
under the EAJA, 28 U.S.C. § 2412(d).
remand, the Social Security Administration found Plaintiff to
be disabled and awarded past-due benefits in the amount of
$96, 028.00. Doc. 34-2. The Social Security Administration
advised Plaintiff that it was withholding $24, 007.00 from
his past-due benefits to pay for attorney's fees in the
event Plaintiff's counsel were to bring a claim for
attorney's fees pursuant to the retainer agreement. Doc.
34-2. Plaintiff's counsel now seeks authorization from
this Court for an award of compensation for legal services in
the amount of $18, 007.00.
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
re. 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, 496 (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
because 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 at 505.
case, I recommend finding that the legal representation by
Plaintiff's counsel was more than adequate and that a
fully favorable decision was obtained. Further, I recommend
finding that Plaintiff's counsel did not delay
proceedings before this Court and that the present Motion was
filed within a reasonable time after Plaintiff received
notice of entitlement to past-due benefits. The requested
fees are furthermore below the twenty-five percent permitted
by the retainer agreement and proportionate given the amount
of time (38.85 hours) spent on the case. This computes to
approximately $463.00 per hour attorney fee rate and is
accordingly consistent with other fee awards authorized in
this District under § 406(b). See Marquez v.
Astrue, Civ. 10-1165, Doc. 30) (D.N.M. August 29. 2012)
(awarding $10, 105 for 18.9 hours, or $529.00 per hour);
Dimas v. Astrue, Civ. No. 03-1157, Doc. 34 (D.N.M.
December 18, 2007) (awarding $17, 000 for 38.26 hours or
$444.23.00 per hour).
on the foregoing, I recommend finding that the requested
award of $18, 007.00 is both appropriate and reasonable. I
therefore recommend GRANTING Plaintiffs Motion (Doc. 37).
PARTIES ARE FURTHER NOTIFIED THAT WITHIN 14 DAYS OF SERVICE
of a copy of these Proposed Findings and Recommended
Disposition they may file written objections with the Clerk
of the District Court pursuant to 28 U.S.C. § 636(b)(1).
A party must file any objections with the Clerk of the
District Court within the fourteen-day period if that party
wants to have appellate review of the ...