Andrews v. Colvin
ORDER granting 18 Motion for Attorney Fees under 42 U.S.C. Section 406(b). See order for further details. Signed by District Judge Martin Reidinger on 8/11/2017. (khm)
THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CIVIL CASE NO. 3:15-cv-00274-MR
EVERETT LEE ANDREWS,
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
THIS MATTER is before the Court on the Plaintiff’s Motion for Attorney
Fees under 42 U.S.C. Section 406(b) [Doc. 18].
On June 23, 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, 2016, 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 November 4, 2016, the Court awarded
the Plaintiff attorney’s fees in the amount of $5,000.00 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. 17].
On August 6, 2017, the Commissioner issued a Notice of Award to the
The Notice of Award explains that $16,779.25,
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. at 3]. 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. 18-2].
The Plaintiff now seeks a total award of $16,779.25 in fees pursuant to
42 U.S.C. § 406(b)(1). [Doc. 19].
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
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, “§ 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
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.
Accordingly, the Plaintiff’s Motion for Attorney’s Fees is granted.
IT IS, THEREFORE, ORDERED that the Plaintiff’s Motion for Attorney
Fees under 42 U.S.C. Section 406(b) [Doc. 18] is hereby GRANTED, and an
award of attorney's fees in the amount of Sixteen Thousand Seven Hundred
Seventy-Nine Dollars and Twenty-Five Cents ($16,779.25) pursuant to 42
U.S.C. § 406(b)(1)(A) is hereby approved.
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
$5,000.00, 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 11, 2017
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