Pollard v. Social Security Administration
Filing
35
OPINION and ORDER by Judge Frank H. Seay granting 33 Motion for Attorney Fees(trl, Chambers)
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
STACEY POLLARD,
)
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
MICHAEL ASTRUE, Commissioner
Social Security Administration
Defendant.
No. CIV-08-434-FHS-KEW
OPINION AND ORDER
Plaintiff’s counsel filed a Motion For Attorney Fees Pursuant
to 42 U.S.C. § 406(b) (Dkt. No. 33) on January 28, 2012.
Judgment was entered in favor of Plaintiff on March 31, 2010,
remanding this action to the Commissioner under sentence four of
42 U.S.C. § 405(g).
favorable
decision
On remand, the Commissioner issued a fully
on
February
25,
2011,
disabled within the relevant time frames.
finding
Plaintiff
On March 21, 2011, and
November 20, 2011, the Commissioner issued decisions awarding
benefits to Plaintiff in the total amount of $38,072.80.
Attorney fees are awardable under 42 U.S.C. § 406(b)(1) when
a
social
security
claimant
is
awarded
disability
following a remand from a federal district court.
Barnhart,
450
F.3d
493,
(10th
496
Cir.
2006).
benefits
McGraw v.
In
such
circumstances, the fourteen-day period running from the date of
judgment under Fed.R.Civ.P. 54(d)(2)(B)(i) will have expired and
claimants, through counsel, rely on Rule 60(b)(6) to seek such
fees well after the expiration of the fourteen-day period.
1
Id.
at 505.
The McGraw Court noted that “[a] motion for an award of
fees under § 406(b)(1) should be filed within a reasonable time
of the Commissioner’s decision awarding benefits.”
On April
Id.
6, 2011, the Court entered an Opinion and Order (Dkt. No. 32)
granting
Plaintiff’s
counsel’s
Motion
for
Relief
Pursuant
to
Fed.R.Civ.P. 60(b)(6) and authorizing counsel to file his motion
for fees under § 406(b)(1) within sixty days of his receipt of
the Notice of Award containing the calculation of Plaintiff’s
past-due
benefits.
In
doing
so,
the
Court
noted
that
the
“decision awarding benefits” language referenced by the McGraw
Court necessarily includes not only the favorable decision on
disability,
but
the
actual
award
of
past-due
benefits.
Plaintiff’s counsel received the Notice of Award on November 29,
2011.
Counsel’s motion filed on January 28, 2012 - sixty days
from the November 29, 2011, receipt of the Notice of Award - is
therefore timely.
Plaintiff’s counsel has moved the Court to approve an
attorney fee award under 42 U.S.C. § 406(b)(1) in the amount of
$9,518.20 for counsel’s representation of Plaintiff before the
Court.
Counsel’s requested fees do not exceed either the amount
contracted for in the parties’ contingency agreement or the 25%
limitation of section 406(b).
Neither the Commissioner nor the
Plaintiff have presented any objection to Plaintiff’s counsel’s
request for fees in the amount of $9,518.20.
The Commissioner
has filed an informative response on the various points of law to
be
considered,
but
has
declined
to
take
reasonableness of counsel’s fee request.
a
position
on
the
Plaintiff has indicated
in a document entitled “Notice To Plaintiff” (Exhibit “E” to Doc.
No. 33) that she has no objection to the attorney fees requested
by her counsel.
the
record,
The Court has conducted an independent review of
including
the
contingency-fee
2
contract
between
counsel and Plaintiff, and counsel’s documented time records, and
concludes
counsel’s
motion
is
timely
and
that
the
requested
attorney fee amount of $9,518.20 is reasonable under the facts
and circumstances of this case given the nature and quality of
the representation and the results achieved.
See Gisbrecht v.
Barnhart, 535 U.S. 789, 807-809 (2002).
Consequently, Plaintiff’s counsel’s Motion For Attorney Fees
Pursuant to 42 U.S.C. § 406(b) (Dkt. No. 33) is granted in the
amount of $9,518.20.1
It is so ordered this 15th day of February, 2012.
1
Plaintiff’s counsel has attached a United States
Department of Treasury document (Exhibit “D”) reflecting the
diversion and application of Plaintiff’s attorney fee award in
the amount of $5,565.40 under the Equal Access to Justice Act
(“EAJA”) to offset Plaintiff’s debt to the United States
Department of Education. Given the application of the EAJA
attorney fee award as an offset, there is no EAJA attorney fee to
refund to the Plaintiff. See Garnett v. Astrue, 2009 WL 93063
(M.D. Fla. 2009)(EAJA fees not subject to refund when they are
garnished to pay claimant’s federal debt). Thus, the Court will
not direct Plaintiff’s counsel to refund the smaller EAJA amount
to Plaintiff pursuant to Weakley v. Bowen, 803 F.2d 575, 580
(10th Cir. 1986).
3
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