Hogan v. Colvin

Filing 16

ORDER requesting additional information from Plaintiff by 03/05/2021. Signed on 02/17/2021 by District Judge M. Douglas Harpool. (Maerz, Mary)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
AUDRA L. HOGAN
Plaintiff,
v.
ANDREW SAUL
Commissioner of Social Security
Defendant.

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Case No. 16-00863-CV-W-MDH-SSA

ORDER
Before the Court is Plaintiff’s Application for an Order Awarding Claimant Attorney Fees
(Doc. 14). Plaintiff’s counsel requests $20,979.00 with credit being given for the $9,500.00 already
received. Plaintiff has not stated under what authority the Court should award these attorney fees.
Defendant objects (Doc. 15). As outlined in the Defendant’s in his Response, there are only
two avenues for an attorney to obtain fees in a Social Security disability case in Federal Court. The
first is under the Equal Access to Justice Act (EAJA). 28 U.S.C. § 2412. The EAJA requires a
party to file an application for fees within thirty days of final judgment in the action. 28 U.S.C. §
2412(d)(1)(B). The 30-day period starts after the time to appeal has expired, or in this case, 60
days after the Court issued the judgment. See Fergason v. Sullivan, 770 F. Supp. 1008, 1010 (W.D.
Mo. Aug. 27, 1991). The Court issued the final judgment in this case on August 20, 2018 (Doc.
13). Thus, any application for fees under the EAJA had to be filed by November 18, 2018, and
Plaintiff’s application dated over two years later is untimely.
The other avenue for attorney fees for district court work performed in a Social Security
case is under 42 U.S.C. § 406(b). That section states:

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Whenever 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, and the Commissioner of Social Security may,
notwithstanding the provisions of section 405(i) of this title, but subject to
subsection (d) of this section, certify the amount of such fee for payment to such
attorney out of, and not in addition to, the amount of such past-due benefits. In case
of any such judgment, no other fee may be payable or certified for payment for such
representation except as provided in this paragraph.
42 U.S.C. § 406(b)(1)(A). To the extent Plaintiff is requesting attorney fees under 42 U.S.C. §
406(b), she has not submitted any documentation of the amount of the past due benefits awarded
by the agency. Without that information, the Court cannot determine whether or not the fee request
is “in excess of 25 percent of the total of the past-due benefits.”
For the reasons set forth above, the Application (Doc. 14) will be denied unless an
additional or clarified basis for the award or additional information regarding the attorney fee
request to provided to the Court. The deadline to submit additional information or clarification is
March 5, 2021.

IT IS SO ORDERED.
Dated: February 17, 2021

/s/ Douglas Harpool______
DOUGLAS HARPOOL
United States District Judge

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