Tucker v. Colvin
Filing
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ORDER granting in part and denying in part 19 Motion for Attorney Fees under EAJA. (See Order for details.) Signed by District Judge Martin Reidinger on 8/15/16. (ejb)
THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO. 1:15-cv-00024-MR-DLH
THOMAS TUCKER,
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Plaintiff,
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vs.
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CAROLYN W. COLVIN, Acting
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Commissioner of Social Security,
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Defendant.
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_______________________________ )
ORDER
THIS MATTER is before the Court on the Plaintiff’s Motion for Attorney
Fees under § 406(b) of the Social Security Act [Doc. 19].
I.
PROCEDURAL BACKGROUND
On February 9, 2015, the Plaintiff initiated this action seeking judicial
review of the Commissioner's decision to deny his application for benefits
under the Social Security Act. [Doc. 1]. On August 31, 2015, this Court
reversed the Commissioner's decision denying the Plaintiff's application for
benefits and remanded the case to the Appeals Council for further
administrative action. [Doc. 13]. On October 22, 2015, the Court awarded
the Plaintiff attorney’s fees in the amount of $5,053.24 in full satisfaction of
any and all claims by the Plaintiff pursuant to the Equal Access to Justice
Act, 28 U.S.C. § 2412(d) (EAJA). [Doc. 18].
On June 12, 2016, the Commissioner issued a Notice of Award to the
Plaintiff indicating that his past due benefits were $46,120.00. [Doc. 19-3 at
1-6]. The Notice of Award also explains that $11,530.00, representing 25%
of the Plaintiff’s back benefits, was being withheld from the Plaintiff’s back
benefits to pay any award of attorney’s fees. [Id.]. The Plaintiff and his
attorney had a contingency fee agreement pursuant to which any attorney’s
fee award could not exceed 25 percent of the past due benefits. [Doc. 192].
On June 14, 2016, the Commissioner issued another Notice of Award,
to “Maria Manning for [R.G.T.],” a minor child. [Doc. 19-3 at 7-11]. The
Notice of Award indicates that the Commissioner selected Maria Manning as
the representative payee and that she would “receive his checks and use the
money for his needs.” [Id. at 7]. The Plaintiff asserts, however, that R.G.T.
is his dependent child and therefore he is entitled to recovery of that portion
of the past due benefits set aside for the payment of the minor child’s
representation ($4,350.00). [Doc. 19-1].
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The Plaintiff now seeks a total award of $15,880.00 in fees pursuant to
42 U.S.C. § 406(b)(1). [Doc. 19].
II.
DISCUSSION
There are two avenues by which a Social Security benefits claimant
may be awarded attorney’s fees. First, claimants may seek a fee award
under the Equal Access to Justice Act, 28 U.S.C. § 2412(d) (EAJA), which
provides that “a court shall award to a prevailing party other than the United
States fees and other expenses ... incurred by that party in any civil action
(other than cases sounding in tort), including proceedings for judicial review
of agency action, brought by or against the United States in any court having
jurisdiction of that action....” 28 U.S.C. § 2412(d)(1)(A). Second, a claimant
may seek an award pursuant to 42 U.S.C. § 406(b), which provides that
“[w]henever a court renders a judgment favorable to a claimant ... 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....” 42 U.S.C. § 406(b)(1)(A).
While attorney's fees may be awarded under both the EAJA and §
406(b), the Social Security Act requires that the attorney must refund to the
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claimant the smaller fee. “Thus, an EAJA award offsets an award under
Section 406(b), so that the amount of the total past-due benefits the claimant
actually receives will be increased by the EAJA award up to the point the
claimant receives 100 percent of the past-due benefits.” Stephens ex rel.
R.E. v. Astrue, 565 F.3d 131, 134-35 (4th Cir. 2009) (quoting Gisbrecht v.
Barnhart, 535 U.S. 789, 796 (2002)).
Here, the Plaintiff and his counsel entered into a contingency fee
agreement by which the Plaintiff agreed to pay 25% of any past due benefits
awarded to his counsel. As the Fourth Circuit has recognized, Ҥ 406(b) was
designed to control, not to displace, fee agreements between Social Security
benefits claimants and their counsel. As long as the agreement does not call
for a fee above the statutory ceiling of twenty-five percent of awarded pastdue benefits, ... § 406(b) simply instructs a court to review the agreement for
reasonableness.”
Mudd v. Barnhart, 418 F.3d 424, 428 (4th Cir. 2005)
(internal quotation and citation omitted).
The Court finds that the services rendered in this Court were
appropriate and reasonable to the relief sought, and the contingency fee
agreement executed by the Plaintiff and his counsel is reasonable.
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Accordingly, the Plaintiff’s Motion for Attorney’s Fees, inasmuch as it
pertains to fee awarded to the Plaintiff Thomas Tucker, is granted.
The Plaintiff’s request for attorney’s fees awarded with respect to the
minor child R.G.T., however, must be denied. The Plaintiff has offered no
evidence that he is the proper payee of such fees. In fact, the Notice of
Award indicates that the Social Security Administration has designated Maria
Manning as the representative payee for R.G.T.’s benefits. Moreover, this
civil action was filed by counsel on behalf of Thomas Tucker only, not his
minor child. As such, the case before the Court addressed only the denial
of benefits as to Thomas Tucker. Accordingly, the Court simply lacks any
jurisdiction to address the award of attorney’s fees with respect to the minor
child’s benefits.
ORDER
IT IS, THEREFORE, ORDERED that the Plaintiff’s Motion for Attorney
Fees under § 406(b) of the Social Security Act [Doc. 19] is hereby GRANTED
IN PART and DENIED IN PART, and an award of attorney's fees in the
amount of Eleven Thousand Five Hundred Thirty Dollars ($11,530.00)
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pursuant to 42 U.S.C. § 406(b)(1)(A) is hereby approved.
In all other
respects, the Plaintiff’s Motion [Doc. 19] is DENIED.
IT IS FURTHER ORDERED that upon receipt of the § 406(b) fees,
Plaintiff’s counsel is hereby instructed to return to the Plaintiff the sum of
$5,053.24, representing the fee that counsel previously received pursuant to
the Equal Access to Justice Act, 28 U.S.C. § 2412(d).
IT IS FURTHER ORDERED that a copy of this Order be provided to
the Social Security Administration in order to effectuate payment of the
award from past due benefits which have been withheld for such purpose
pursuant to Title II of the Social Security Act.
IT IS SO ORDERED.
Signed: August 15, 2016
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