Hancock v. Commissioner of Social Security

Filing 27

REPORT AND RECOMMENDATIONS re 23 Plaintiff's Motion for Attorney Fees Under 42 USC Section 406(b). IT IS RECOMMENDED THAT: (1) Plaintiff's motion for an award of attorney's fees under 42 U.S.C. § 406(b) 23 should be GRANTED only in part. Counsel should be awarded an additional fee of $3,108.15, representing a reduced fee of $6,228.15 under 42 U.S.C. §406(b), and further offset by the amount of EAJA fees previously awarded by this Court; (2) Plaintiff&# 039;s counsel is again forewarned that any future untimely filing of a §406(b) motion, in violation of Local Rule 54.2(b), is extremely likely to result in the outright denial of any statutory fee; (3) Counsel should explicitly address the issue of timeliness in any currently pending or future § 406(b) motions filed in this Court. Objections to R&R due by 9/24/2018. Signed by Magistrate Judge Stephanie K. Bowman on 9/10/2018. (km)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

BRIAN HANCOCK,

Case No: 1:15-cv-198
Plaintiff,

v.

Barrett, J.
Bowman, M.J.

COMMISSIONER OF SOCIAL SECURITY,
Defendant.

REPORT AND RECOMMENDATION
Plaintiff Brian Hancock filed this Social Security appeal to challenge the
Defendant’s non-disability finding. In July 2016, the Court reversed and remanded for
further review under sentence four of 42 U.S.C. §405(g). (Docs. 16, 17). In December
2016, the Court awarded Plaintiff attorney’s fees under the Equal Access to Justice Act
(“EAJA”). (Docs. 20, 21).
On July 13, 2018, Plaintiff’s counsel filed a motion with this Court seeking an
additional award of attorney’s fees pursuant to 42 U.S.C. §406(b). Plaintiff’s motion
alluded to two Notices of Award, dated August 29, 2017 and September 19, 2017 as
attached, but failed to attach the referenced documents. (Doc. 23 at 2, n.1). Therefore,
on August 30, 2018, the undersigned directed counsel to supplement his motion for fees
by filing the missing attachments. (Doc. 25).
The same Order alerted counsel to the presumed untimeliness of his motion for
fees:
Local Rule 54.2(b) specifies that a motion for attorney’s fees under the
Social Security Act must be filed in this Court within forty-five days of the
Notice of Award. In addition, an award of fees under 42 U.S.C. § 406(b)
must be reviewed by this Court to ensure that it is “reasonable.” See Ringel

v. Com’r of Soc. Sec., 295 F. Supp.3d 816 (S.D. Ohio 2018). The
untimeliness of a motion may result in the denial of attorney’s fees. See
e.g., McCluskey v. Com'r of Soc. Sec., 2016 WL 6836353 (S.D. Ohio Nov.
16, 2016); Iames v. Com'r, 2017 WL 574931 (S.D. Ohio Jan 25, 2017),
adopted at 2017 WL 567939 (S.D. Ohio Feb. 13, 2017).
Although the Commissioner has filed no response to Plaintiff’s motion, this
Court cannot determine whether the requested fee is both timely and
reasonable absent the missing attachments to the motion.
(Id., emphasis original).
On September 5, 2018, counsel filed the missing attachments to his original
motion. The documents confirm the dates of the Notices of Award and correspondingly,
also confirm that counsel’s motion for fees is more than six months out of time. Counsel’s
response to the Court’s order offered only the missing documents; no additional
statement has been included to explain his violation of Local Rule 54.2(b).
Additional fees beyond the EAJA fees already awarded in this case may be
granted only if this Court independently determines that the fee sought is timely and
reasonable. Unlike EAJA fees paid by the agency, fees awarded under 42 U.S.C. §406(b)
are paid to the attorney directly from the disabled individual’s benefits.
The undersigned notes that the same counsel has been expressly warned in a
prior case that any future failure to comply with the time limitations of L.R. 54.2(b) likely
would result in a significant reduction, if not the outright denial of his fee. In fact, to
emphasize its point this Court ordered this attorney “to explicitly address the issue of
timeliness in any current or future pending § 406(b) motions filed in this Court.” See
Rabong v. Commissioner, Case No. 1:14-cv-811-SJD-SKB. (Docs. 22, 23). Counsel
clearly failed to comply with the prior Order in this case. 1 The undersigned strongly

1Despite

failing to address the issue in his §406(b) motion as directed, counsel expressly included a section
captioned “Timeliness of Application” to support his earlier (and timely filed) EAJA fee motion. (See Doc.
19 at 4).

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encourages counsel to adhere to this requirement in the future.
The Court agrees with Plaintiff’s counsel that his representation in this case was
excellent. Counsel now seeks a total award of $10,380.25 for 16 hours of work performed
in this Court, equivalent to a hypothetical hourly rate of $648.77. The Court does not take
issue with the amount of time billed or the hourly rate. Both are reasonable given the
facts of this case. What is of concern to the Court is the untimeliness of this motion and
the lack of any explanation for the 10 month delay in filing. Under similar circumstances,
when another attorney from the counsel’s firm filed out-of-time fee motions after being
expressly warned not to do so, both Magistrate Judge Litkovitz and the undersigned
recommended the complete denial of counsel’s fee requests, and two district judges have
adopted those R&Rs. See e.g., McCluskey, R&R adopted at 2016 WL 7188586 (S.D.
Ohio Dec. 12, 2016)(Beckwith, J.); Iames, R&R adopted at 2017 WL 567939 (Dlott, J.,
reiterating that “Plaintiff’s counsel is cautioned a third time in the strongest possible terms
that § 406(b) motions filed outside the time specified in Local Rule 54.2(b) will be
DENIED”).
Viewing the record as a whole, the Court recommends that counsel’s fee request
be reduced by 40%, or $4,152.10, leaving a total award of $6,228.15. With the reduction,
the recommended award reflects a hypothetical hourly rate of $389.36 for the work
performed in this Court, which is still more than twice the $170.00 hourly rate previously
awarded to counsel for the same work under the EAJA. As counsel has acknowledged,
in order to avoid a duplicate recovery and under controlling case law, the previously
awarded EAJA fee ($3120.00) must be returned to Plaintiff. See Jankovich v. Sec’y, 868
F.2d 867, 871 n.1 (6th Cir. 1989). For the convenience of the parties and of the Court,
the duplicate EAJA fee is applied as an offset against the award of $6,228.15.
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Conclusion and Recommendations
Accordingly, IT IS RECOMMENDED THAT:
1. Plaintiff’s motion for an award of attorney’s fees under 42 U.S.C. § 406(b) (Doc.
23) should be GRANTED only in part.

Counsel should be awarded an

additional fee of $3,108.15, representing a reduced fee of $6,228.15 under 42
U.S.C. §406(b), and further offset by the amount of EAJA fees previously
awarded by this Court;
2. Plaintiff’s counsel is again forewarned that any future untimely filing of a
§406(b) motion, in violation of Local Rule 54.2(b), is extremely likely to result in
the outright denial of any statutory fee;
3. Counsel should explicitly address the issue of timeliness in any currently
pending or future § 406(b) motions filed in this Court.

s/ Stephanie K. Bowman
Stephanie K. Bowman
United States Magistrate Judge

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

BRIAN HANCOCK,

Case No: 1:15-cv-198
Plaintiff,

Barrett, J.
Bowman, M.J.

v.

COMMISSIONER OF SOCIAL SECURITY,
Defendant.

NOTICE
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written
objections to this Report & Recommendation (“R&R”) within FOURTEEN (14) DAYS of
the filing date of this R&R. That period may be extended further by the Court on timely
motion by either side for an extension of time. All objections shall specify the portion(s)
of the R&R objected to, and shall be accompanied by a memorandum of law in support
of the objections. A party shall respond to an opponent’s objections within FOURTEEN
(14) DAYS after being served with a copy of those objections. Failure to make objections
in accordance with this procedure may forfeit rights on appeal. See Thomas v. Arn, 474
U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

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