McDonald v. Astrue

Filing 34

ORDER denying 28 Motion to Stay; granting 25 Motion for Attorney Fees; SEE ORDER FOR FURTHER DETAILS. Signed by District Judge Martin Reidinger on 8/7/12. (nll)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
BRYSON CITY DIVISION
CIVIL CASE NO. 2:09cv27

RICKEY McDONALD,
Plaintiff,
vs.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.

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ORDER

THIS MATTER is before the Court on the Plaintiff’s Motion for Attorney’s
Fees under the Social Security Act. [Doc. 25].
PROCEDURAL HISTORY
On December 2, 2009, this matter was remanded to the Social Security
Administration pursuant to Sentence Four of 42 U.S.C. §405(g) on the joint
motion of the parties for further administrative proceedings. [Doc. 12].

At

that time, the Plaintiff was granted the sum of $2,765.42 for attorney’s fees
pursuant to the Equal Access to Justice Act (EAJA), 28 U.S.C. §2412(d).
[Doc. 20]. The Court denied the Plaintiff’s request for an award of attorneys’
fees for work performed by attorneys working for Plaintiff’s counsel who were
not admitted to practice in this District and who had not sought admission pro

hac vice. [Id.]. The Plaintiff filed a Notice of Appeal from that portion of the
Court’s decision. [Doc. 22].
While the appeal was pending, the Plaintiff received notification on
November 28, 2010 that a favorable decision had been rendered in his case.
[Doc. 26-1]. The Social Security Administration commenced paying benefits
to the Plaintiff and withheld the sum of $22,134.25 to pay any subsequent
award of attorneys’ fees.1 [Doc. 33]. The Plaintiff’s appeal was stayed until
the United States Fourth Circuit Court of Appeals in Priestley v. Astrue, 651
F.3d 410 (4 th Cir. 2011), determined that an award of attorneys’ fees could be
made for services performed by attorneys not admitted to a district but who
were working for the claimant’s counsel. [Doc. 32; Doc. 33]. As a result of that
decision, the parties settled the Plaintiff’s appeal, reached an agreement on
EAJA fees and the appeal was dismissed. [Doc. 32]. The Plaintiff received an
additional award of $3,298.00 in attorneys’ fees pursuant to EAJA in
settlement with the Commissioner for work done at the appellate level. [Id.].
The parties have agreed that a reasonable fee pursuant to the Social
Security Act, 42 U.S.C. §406(b), in connection with services performed before
this Court, is the sum of $12,134.25. [Doc. 32; Doc. 33]. They further agree

1

The Administration subsequently authorized payment to Plaintiff’s counsel of the
sum of $10,000.00 for services performed at the administrative level pursuant to 42
U.S.C. §406(a). [Doc. 32]. Thus, the balance remaining is $12,134.25.

that Plaintiff’s counsel must refund to the Plaintiff the lesser of the total EAJA
fees received, including those paid in connection with the appeal, or the fees
received pursuant to §406(b) of the Social Security Act. [Id.]. The Court has
reviewed the parties’ submissions and has determined that the sum of
$12,134.25, as agreed by the parties, is a reasonable fee pursuant to 42
U.S.C. §406(b).
IT IS, THEREFORE, ORDERED that the Plaintiff’s Motion for Attorney’s
Fees under the Social Security Act [Doc. 25] is hereby GRANTED and a
reasonable fee pursuant to 42 U.S.C. §406(b) is the sum of $12,134.25.
IT IS FURTHER ORDERED that Plaintiff’s counsel must refund to the
Plaintiff the lesser of the EAJA fees which have been paid and received,
including those paid in connection with the appeal, or the fees received
pursuant to 42 U.S.C. §406(b).
IT IS FURTHER ORDERED that the Motion to Hold Plaintiff’s Motion for
Attorneys’ Fees in Abeyance [Doc. 28] is hereby DENIED as moot.
Signed: August 7, 2012