Pitts v. Social Security Administration
Filing
28
OPINION AND ORDER by Magistrate Judge Steven P. Shreder GRANTING 25 Motion for Attorney Fees Under 42 U.S.C. 406(b) (pjw, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA
HARVEY L. PITTS,
Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of the Social
Security Administration,
Defendant.
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Case No. CIV-06-252-SPS
OPINION AND ORDER AWARDING
ATTORNEY’S FEES UNDER 42 U.S.C. § 406(b)
The Commissioner of the Social Security Administration denied an application for
benefits by the Plaintiff Harvey L. Pitts. The Plaintiff appealed to this Court, which
reversed the Commissioner’s decision and remanded the case to the administrative law
judge for further proceedings. On remand, the ALJ found the Plaintiff to be disabled and
awarded him $63,675.00 in past-due benefits. The Plaintiff now seeks appellate costs
and attorneys’ fees pursuant to 42 U.S.C. § 406(b)(1) in the amount of $15,918.75. For
the reasons set forth below, Plaintiff’s Attorneys’ Motion for an Award of Attorney Fees
Under 42 U.S.C. § 406(b) [Docket No. 25] should be granted.
While Section 406(b) does not dictate the precise length of time one has to file a
request for fees, the Tenth Circuit has held that “the best option . . . is for counsel to
employ Federal Rule of Civil Procedure 60(b)(6) in seeking a § 406(b)(1) fee award.”
McGraw v. Barnhart, 450 F.3d 493, 504-505 (10th Cir. 2006). Thus, a motion for
Section 406(b) fees must be filed within a reasonable time of receipt of the notice of
award.
Fed. R. Civ. P. 60(c)(1) (“A motion under Rule 60(b) must be made within a
reasonable time[.]”). Here, the notice of award is dated August 11, 2010, so Plaintiff’s
motion comes almost ten months after receipt of the notice of award. Plaintiff’s attorney
explains in the accompanying brief that the Plaintiff’s attorney’s fee agreement was not
approved by the ALJ on remand at the agency level. That decision was appealed, but the
appeal was denied by Regional Chief Judge Joan Parks Saunders on November 8, 2010.
See Docket No. 26, Ex. 6. The Plaintiff’s attorneys thereafter filed a fee petition on
January 7, 2011 in order to receive administrative fees, and a confirmation letter was sent
on February 8, 2011 to both Plaintiff and Plaintiff’s attorneys. Since that date, Plaintiff’s
attorneys have been waiting for a revised Notice of Award, but have yet to receive said
Notice. Because four months had already passed, Plaintiff’s attorneys filed the instant
motion to ensure that agency funds would be preserved in order to pay the requested
attorney’s fees. While the Court is not entirely satisfied with this explanation regarding
the delay in filing the instant motion for attorney’s fees, the government has not objected
to the timeliness of the motion and the Court is unwilling to find that the motion is
untimely given the rather unusual circumstances here. Therefore, the undersigned finds
that said delay will not preclude an award of attorney’s fees under Section 406(b).
The Court therefore finds that the Plaintiff moved for attorneys’ fees within a
reasonable time and that his motion was therefore timely pursuant to Fed. R. Civ. P. 60.1
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As noted supra, 406(b) motions are to be filed within a reasonable time under Fed. R. Civ. P.
60(b)(6). Typically, motions filed under Fed. R. Civ. P. 60(b)(6) are filed when the party has a
reason for filing the motion; in the case of 406(b) motions, that reason would be the receipt of
the notice of award, since it is impossible for counsel to calculate attorney’s fees without the
notice of award. Thus, the undersigned expects a 406(b) motion to be filed within a reasonable
time of receiving the notice of award. The undersigned also expects that attorneys will undertake
reasonable efforts to obtain the notice of award. Therefore, in evaluating the timeliness of a
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See McGraw v. Barnhart, 450 F.3d 493, 504-505 (10th Cir. 2006) (“Section 406(b) itself
does not contain a time limit for fee requests. . . . We believe that the best option in these
circumstances is for counsel to employ Federal Rule of Civil Procedure 60(b)(6) in
seeking a § 406(b)(1) fee award.”) [citations omitted]. See also Fed. R. Civ. P. 60(c)(1)
(“A motion under Rule 60(b) must be made within a reasonable time[.]”). The Court also
concludes that the amount awarded to the Plaintiff for past-due benefits was $63,675.00.
“Whenever a court renders a judgment favorable to a claimant under this
subchapter 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). This amount is exclusive of any award
to the Plaintiff’s agency representative under 42 U.S.C. § 406(a). See Wrenn ex rel.
Wrenn v. Astrue, 525 F.3d 931, 937 (10th Cir. 2008) (“The Commissioner and court have
the authority to independently determine the appropriate attorney fees. Each has separate
standards to make this determination and is only limited as provided by statute. Based on
the plain language and statutory structure found in § 406, the 25% limitation on fees for
court representation found in § 406(b) is not itself limited by the amount of fees awarded
by the Commissioner.”) [internal citations omitted].
The Plaintiff’s fee request of
406(b) motion, the undersigned anticipates satisfactory explanations regarding the efforts
undertaken by counsel to obtain the notice of award and an explanation regarding the delay, if
any, between the receipt of the notice of award and the filing of the 406(b) motion.
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$15,918.75 does not exceed 25% of past-due benefits, so the Court need only consider
whether this amount is reasonable given the work performed in this case. See Gisbrecht v.
Barnhart, 535 U.S. 789, 807 (2002) (“[W]e conclude, § 406(b) does not displace
contingent-fee agreements as the primary means by which fees are set for successfully
representing Social Security benefits claimants in court. Rather, § 406(b) calls for court
review of such arrangements as an independent check, to assure that they yield
reasonable results in particular cases.”).
Factors to consider in determining whether a requested fee is reasonable under
Gisbrecht include the character of the representation and the results achieved, 535 U.S. at
808, citing McGuire v. Sullivan, 873 F.2d 974, 983 (7th Cir. 1989) and Lewis v. Secretary
of Health & Human Services, 707 F.2d 246, 249-50 (6th Cir. 1983) (reducing the fee for
substandard work), whether counsel has caused delay, and whether the contingent fee is
so large in comparison to the amount of time spent on the case that it results in a windfall.
Id., citing Rodriguez v. Bowen, 865 F.2d 739, 746-47 (6th Cir. 1989) (noting fees are
appropriately reduced when undue delay increases past-due benefits or when the amount
of the fee is unconscionable in light of the work performed). Contemporaneous billing
records may be helpful in determining reasonableness. Id., citing Rodriguez, 865 F.2d at
741.
Based on these factors, the Court concludes that an award of $15,918.75 in
attorneys’ fees is reasonable for the work done on appeal in this case.
First, the Plaintiff’s attorneys ably represented him in this appeal and ultimately
obtained excellent results on his behalf. The Court reversed the Commissioner’s decision
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for reasons argued by the Plaintiff’s attorneys, remanded the case for further proceedings
by the ALJ, and awarded the Plaintiff $4,133.40 in costs and attorneys’ fees as the
prevailing party pursuant to the Equal Access to Justice Act (“EAJA”), 28 U.S.C. §
2412(d).
On remand, the Plaintiff obtained a disability determination from the
Commissioner and an award of past-due benefits in the amount of $63,675.00. Thus, in
addition to ongoing disability benefits, the Plaintiff should net over $47,000.00 in pastdue benefits even after all fees and costs are paid. Second, there is no evidence counsel
caused any unnecessary delay in these proceedings. Third, the requested fee represents
no windfall to the Plaintiff’s appellate attorneys, who spent 25.5 hours working on the
Plaintiff’s case, see Docket No. 25, Ex. 1, and will therefore earn approximately $624.26
per hour for their work done on appeal. The Court therefore concludes that the requested
fee of $15,918.75 is reasonable within the guidelines set by Gisbrecht.
The Commissioner withheld $15,918.75 from the Plaintiff’s past-due benefits.
Consequently, the amount retained by the Commissioner should be sufficient to satisfy
the $15,918.75 awarded by the Court pursuant to Section 406(b)(1). See Wrenn, 525
F.3d at 933 (“If the amount withheld by the Commissioner is insufficient to satisfy the
amount of fees determined reasonable by the court, the attorney must look to the
claimant, not the past-due benefits, to recover the difference.”). Nevertheless, because
the $15,918.75 amount awarded herein does exceed the $4,133.40 previously awarded by
the Court under the EAJA, the Plaintiff’s appellate attorneys must refund the latter
amount to the Plaintiff. See Weakley v. Bowen, 803 F.2d 575, 580 (10th Cir. 1986).
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Accordingly, Plaintiff’s Motion for Attorney’s Fees Under 42 U.S.C § 406(b)
[Docket No. 25] is hereby GRANTED.
The Court hereby approves an award of
$15,918.75 in attorneys’ fees to the Plaintiff’s appellate attorneys pursuant to 42 U.S.C. §
406(b)(1), and directs the Commissioner to pay the balance of the past-due benefits in his
possession to the Plaintiff’s appellate attorneys, who shall thereupon refund the full
amount previously awarded under the EAJA to the Plaintiff.
IT IS SO ORDERED this 23rd day of August, 2011.
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