Bailey v. Social Security Administration

Filing 29

OPINION AND ORDER by Magistrate Judge Steven P. Shreder granting 27 Motion for Attorney Fees (dma, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
MARY C. BAILEY,

Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of the Social
Security Administration,
Defendant.

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Case No. CIV-10-227-SPS

OPINION AND ORDER AWARDING
ATTORNEYS’ FEES TO THE PLAINTIFF UNDER THE EAJA
The Plaintiff was the prevailing party in this appeal of the Commissioner of the
Social Security Administration’s decision denying benefits under the Social Security Act.
The Plaintiff seeks an award of attorneys’ fees in the amount of $6,737.30 under the
Equal Access to Justice Act, 28 U.S.C. § 2412. The Commissioner indicates that he has
no objection to an award of $6,737.30 to the Plaintiff, but does object to the proposition
that counsel will refund only the excess payment in the event that counsel is later
awarded fees under 42 U.S.C. § 406(b).
Upon review of the record herein, the Court finds that said amount is reasonable
and that the Commissioner should be ordered to pay it to the Plaintiff as the prevailing
party herein. See 28 U.S.C. § 2412(d)(1)(A) (“Except as otherwise specifically provided
by statute, a court shall award to a prevailing party . . . fees and other expenses . . .
incurred by that party in any civil action [.]”). See also Manning v. Astrue, 510 F.3d

1246, 1249-50 (10th Cir. 2007), cert. denied, __ U.S. __, 129 S. Ct. 486, 172 L. Ed. 2d
355 (2008). In addition, should Plaintiff’s counsel ultimately be awarded attorney’s fees
pursuant to 42 U.S.C. § 406(b), Plaintiff’s counsel shall refund the smaller amount to
Plaintiff. Weakley v. Bowen, 803 F.2d 575, 580 (10th Cir. 1986).1
Accordingly, Plaintiff’s Application for the Award of Attorney’s Fees Under the
Equal Access to Justice Act [Docket No. 27] is hereby GRANTED, and the
Commissioner is hereby ordered to pay attorneys’ fees in the amount of $6,737.30 to the
Plaintiff as the prevailing party herein.
IT IS SO ORDERED this 17th day of January, 2012.

1

As noted in this Court’s Opinion and Order Awarding Attorney’s Fees Under 42 U.S.C. §
406(b) [Docket No. 30] in Case No. CIV-09-163-SPS, Neal v. Astrue, the attorneys may not, as
the instant motion suggests, treat the EAJA award as a credit against the Plaintiff’s account or
otherwise “net out” the EAJA award against any future Section 406(b) award. See McGraw, 450
F.3d at 497 n. 2. See also Gisbrecht, 535 U.S. at 796 (“Fee awards may be made under both
prescriptions, but the claimant’s attorney must ‘refun[d] to the claimant the amount of the
smaller fee.’”), quoting Act of Aug. 5, 1985, Pub. L. 99-80, § 3, 99 Stat. 186 [emphasis added].
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