Thomas v. Astrue
ORDER. ORDERED that plaintiff James K. Thomas's Motion for an Award of Attorney Fees Under 42 U.S.C. § 406(b) 24 is GRANTED. ORDERED that plaintiff's counsel is awarded attorney's fees in the amount of $26,147.50. Signed by Judge Philip A. Brimmer on 11/05/15.(jhawk, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 12-cv-03096-PAB
JAMES K. THOMAS,
CAROLYN W. COLVIN, Acting Commissioner of Social Security,
This matter comes before the Court on the Motion for an Award of Attorney Fees
Under 42 U.S.C. § 406(b) [Docket No. 24] filed by plaintiff James K. Thomas. Plaintiff’s
motion is unopposed.
On January 3, 2008, plaintiff filed a Complaint seeking review of the final
decision of Michael J. Astrue, then-Commissioner of Social Security, denying plaintiff’s
claim for disability insurance and supplemental security income under Titles II and XVI
of the Social Security Act, 42 U.S.C. §§ 401-433. Thomas v. Astrue, No. 08-cv-00005PAB (Docket No. 1). On March 13, 2009, following oral argument, the Court reversed
Commissioner Astrue’s decision and remanded the case for further proceedings. See
id. (Docket No. 16). On November 27, 2012, after plaintiff’s claim for disability
insurance and supplemental security income was again denied on remand, plaintiff
initiated this action seeking review of the final decision of defendant Carolyn W. Colvin
in her official capacity as Acting Commissioner of Social Security (the
“Commissioner”).1 Docket No. 1. On June 3, 2014, the Court rem anded the
Commissioner’s decision for an award of benefits. See Docket No. 23. On March 28,
2015, plaintiff was awarded past-due benefits from the Social Security Administration,
from which the Social Security Administration withheld $50,847.50 in anticipation of this
fee request. Docket No. 25-2 at 1, 3. Plaintiff filed his motion for attorney’s fees on
September 23, 2015. Docket No. 24 at 1. Plaintif f provides no explanation for the
nearly six-month delay between receiving notice of the award and filing the instant
motion. Nonetheless, since plaintiff’s motion is unopposed, the Court will consider
plaintiff’s motion timely. See McGraw v. Barnhart, 450 F.3d 493, 505 (10th Cir. 2006)
(“A motion for an award of fees under § 406(b)(1) should be filed within a reasonable
time of the Commissioner’s decision awarding benefits” and such motions “are
committed to the district court’s sound discretion”). Between his two appeals, plaintiff
has been awarded a total of $9,552.80 in fees pursuant to the Equal Access to Justice
Act (“EAJA”), 28 U.S.C. § 2412(d). Docket No. 23; see also Case No. 08-cv-00005PAB (Docket No. 24).
Plaintiff requests that, pursuant to 42 U.S.C. § 406(b), the Court g rant his
attorney, Frederick Newell, $26,147.50 in attorney’s fees in connection with this case.
Docket No. 24 at 1, ¶ 6. Plaintiff states that he agreed to pay Mr. Newell 25% of any
past-due disability award granted upon the successful outcome of this action. Docket
No. 24 at 1, ¶ 3; see also Docket No. 25-1 at 1.
Although the complaint names Commissioner Astrue as defendant, pursuant to
Fed. R. Civ. P. 25(d), Carolyn W. Colvin, who as of February 14, 2013 has been named
as the Acting Commissioner, was automatically substituted as the defendant in this suit.
Section 406(b) of Title 42 of the United States Code provides, in pertinent part,
that, “[w]henever a court renders a judgment favorable to a claimant under this
subchapter 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.” The Tenth Circuit has “conclude[d] that
§ 406(b)(1) allows a district court to award attorneys’ fees in conjunction with a remand
for further proceedings; it is not required, as a predicate to a § 406(b)(1) fee award, that
the district court remand for an award of benefits.” McGraw, 450 F.3d at 503. “The
statute deals with the administrative and judicial review stages discretely: § 406(a)
governs fees for representation in administrative proceedings; § 406(b) controls fees for
representation in court.” Gisbrecht v. Barnhart, 535 U.S. 789, 794 (2002). Pursuant to
this statutory provision, “each authority sets fees for the work done before it; thus, the
court does not make fee awards for work at the agency level, and the Commissioner
does not make fee awards for work done before the court.” McGraw, 450 F.3d at 498.
Despite a contingent-fee agreement, courts must review the reasonableness of
the fees yielded by the agreement to ensure that the attorney’s recovery is based on
the character of the representation and the results achieved. Gisbrecht, 535 U.S. at
808. Moreover, if claimant’s counsel is awarded fees under both the EAJA and 42
U.S.C. § 406(b)(1), counsel must refund the smaller award to the claimant. See
Gisbrecht, 535 U.S. at 796; Weakley v. Bowen, 803 F.2d 575, 580 (10th Cir. 1986).
Mr. Newell’s affidavit reflects that he spent a total of 55.6 hours on plaintiff’s two
cases. Docket No. 25-3 at 1-2. In his motion, however, plaintiff states that Mr. Newell
seeks fees for “49.25 hours of work in District Court.” Docket No. 24 at 1, ¶ 6. It is not
clear from Mr. Newell’s affidavit which entries he intended to deduct from the total hours
he claims to have worked on plaintiff’s case. See generally Docket No. 25-3.
Although plaintiff’s records could be clearer, the Court is mindful that Mr. Newell
undertook a substantial risk of loss in connection with the case, devoted considerable
time and effort in presenting plaintiff’s position, and pursued plaintiff’s claim over a
period of more than six years before obtaining a favorable result. Moreover, the net fee
paid by plaintiff to Mr. Newell will be far less than the agreed amount of 25% of pastdue benefits. Thus, in light of the hours worked, the motion being unopposed, and Mr.
Newell’s willingness to receive less than the agreed-upon fee, the Court concludes that
an attorney’s fee of $26,147.50 is reasonable.
Wherefore, it is
ORDERED that plaintiff James K. Thomas’s Motion for an Award of Attorney
Fees Under 42 U.S.C. § 406(b) [Docket No. 24] is GRANTED. It is further
ORDERED that plaintiff’s counsel is awarded attorney’s fees in the amount of
DATED November 5, 2015.
BY THE COURT:
s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge
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