Walker v. Astrue

Filing 29

ORDER that the Plaintiff supplement his re 27 MOTION for Attorney Fees within 7 calendar days of the entry of this Order. Signed by District Judge Martin Reidinger on May 11, 2010. (jhg)

IN THE DISTRICT COURT OF THE UNITED STATES F O R THE WESTERN DISTRICT OF NORTH CAROLINA AS H E V IL L E DIVISION C IV IL CASE NO. 1:07-cv-335

S TE P H E N W. WALKER,

) ) P l a i n t if f , ) ) vs . ) ) M IC H AE L J. ASTRUE, ) C o m m is s io n e r of Social Security, ) ) D e fen d a n t. ) ) _______________________________ )

ORDER

TH IS MATTER is before the Court on the Plaintiff's Motion for A tto rn e ys ' Fees Under 42 USC 406(b). [Doc. 27]. P la in tiff's motion asks the Court to approve fees based on a fee a g re e m e n t and a back benefits award in which fees were withheld. Those a re not appended to Plaintiff's motion. To dispose of Plaintiff's motion, the C o u rt must evaluate the reasonableness of an award under such a g re e m e n t. Gisbrecht v. Barnhart, 535 U.S. 789, 122 S.Ct. 1817 (2002). Also absent is a recitation of Plaintiff's counsel's hours spent pursuing this la ws u it, which aid in the reasonableness evaluation set out in Gisbrecht.

Plaintiff's motion is unclear in whether Plaintiff seeks an award of the fu ll withheld 25% of back benefits, from which the Court would then order P la in tiff's counsel to reimburse to Plaintiff the sum representing the earlierp a id EAJA fees, or whether Plaintiff seeks an award of $14,409.00, from wh ic h the Court would then order Plaintiff's counsel to reimburse to Plaintiff th e sum representing the earlier-paid EAJA fees. The Court will not enter a n order under 42 USC 406(b) that does not include an order that counsel re im b u rs e Plaintiff for EAJA fees counsel actually received. Id. P la in tiff's motion also fails to indicate what, if any, fees may have b e e n awarded under 42 USC 406(a), and is not completely clear whether c o u n s e l was paid as attorney fees the full $3950.00 previously awarded to P la in tiff by this Court under the EAJA. Brown v. Barnhart, 270 F.Supp.2d 7 6 9 , 771 (W.D. Va, 2003) citing Morris v. Social Security Administration, 6 8 9 F.2d 495, 497 (4th Cir.1982), Stephens ex rel. R.E. v. Astrue, 565 F.3d 1 3 1 ( 4 th Cir. 2009). T h e Court finally notes that Defendant is permitted to respond to P la in tiff's motion on or before May 24, 2010. IT IS THEREFORE ORDERED that the Plaintiff supplement his M o tio n for Attorney's Fees [Doc. 27] with short clarifying statements about th e fees requested under 406(b), any fees received or pending pursuant to

406(a), and payment to counsel of the fees ordered under EAJA, and a p p e n d thereto, both the fee agreement under which he proceeds and the a wa rd from which 25% is withheld to pay the fees he seeks, as well as a tim e statement. IT IS FURTHER ORDERED that, to permit Defendant a full set of fa c ts upon which to respond, Plaintiff submit these materials within 7 c a le n d a r days of the entry of this Order. IT IS SO ORDERED.
Signed: May 11, 2010