Hill v. Social Security Administration

Filing 33

**STRICKEN per Minute Order entered 1/23/2017 (Doc. 34)** OPINION & ORDER by Magistrate Judge Kimberly E. West granting 32 Motion for Attorney Fees(sjr, Chambers) Modified to add "stricken" language on 1/23/2017 (adw, Deputy Clerk).

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
PHYLLIS M. HILL,

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Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of Social
Security Administration,
Defendant.

Case No. CIV-10-347-KEW

OPINION AND ORDER
This

matter

comes

before

this

Court

on

the

Motion

for

Attorney’s Fees Pursuant to 42 U.S.C. § 406(b) filed by Nathan E.
Barnard, the attorney for Plaintiff (Docket Entry #32).
response to the Motion has been received from Defendant.

No

Counsel

requests that he be awarded fees for legal work pursuant to 42
U.S.C. § 406(b) in the amount of $3,160.58.
by

Plaintiff

to

appeal

the

adverse

Counsel was employed

decision

rendered

by

Administrative Law Judge presiding over the request for benefits.
Counsel filed Plaintiff’s opening brief and reply.

On March

27, 2012, this Court reversed the ALJ’s decision and remanded the
case to Defendant for further proceedings.
prevailed in this appeal.

Plaintiff, therefore,

As a result, on July 6, 2012, Plaintiff

was awarded attorneys’ fees in accordance with the Equal Access to
Justice Act (“EAJA”) for the efforts before this Court in the
amount of $3,894.45.

At a time not specified by Plaintiff’s

attorney, he received a Notice of Award dated July 20, 2013
awarding past due benefits of $17,705.17.
By letter dated November 13, 2013, Plaintiff’s counsel was
informed by the Department of the Treasury that the entire amount

of EAJA fees awarded to Plaintiff had been seized to satisfy an
outstanding debt owed to the Government by Plaintiff.

Plaintiff’s

counsel now seeks $3,160.58 in § 406(b) fees to compensate him “for
that amount he was due under the EAJA, and which was taken from the
EAJA check by the U.S. Government for payment of Plaintiff’s tax
debt.
The amount awarded to counsel for successfully prosecuting an
appeal of a denial of Social Security benefits and obtaining
benefits for a claimant may not exceed 25% of past due benefits.
42 U.S.C. § 406(b)(1)(A). As in this case, Defendant is authorized
to withhold up to 25% of the past due benefits awarded to a
claimant for payment directly to the claimant’s attorney.
U.S.C. § 406(a)(4).

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The Tenth Circuit Court of Appeals determined

that the 25% amount is separate and apart from the amount awarded
at the agency level under 42 U.S.C. § 406(a).
F.3d 931, 937-938 (10th Cir. 2008).
full

award

of

25%

is

a

Wrenn v. Astrue, 525

The only condition upon the

requirement

that

the

court

review

contingency fee arrangements “to assure that they yield reasonable
results in particular cases.”

Id. at 938 (citations omitted).

Plaintiff’s counsel seeks considerably less than the 25% award
allowed under § 406(b).
This Court has considerable independent concern about the
timeliness of counsel’s request.

In seeking an award under §

406(b), an attorney is required to employ the provisions of Fed. R.
Civ. P. 60(b)(6). McGraw v. Barnhart, 450 F.3d 493, 505 (10th Cir.
2006).

While relief under this rule is considered extraordinary

and reserved for exceptional circumstances, substantial justice is
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served by permitting its use in the circumstance faced by counsel
in seeking these fees.

Id.

To that end, any fee request pursued

under §406(b) should be filed
Commissioner’s

decision

“within a reasonable time of the

awarding

benefits.”

Id.

(citation

omitted).
In this case, Notice of Award was issued by Defendant on July
20, 2013.

Plaintiff’s counsel never sought and extension of time

to file a request for § 406(b) fees under Rule 60(b)(6).
filed the subject Motion on December 2, 2016.

Counsel

A three and one half

year delay in filing a § 406(b) request is patently unreasonable.
Counsel did not seek and extension to file the Motion and does not
provide an explanation with the Motion for the considerable delay
in its filing. As a result, the request is considered untimely and
will be denied.
IT IS THEREFORE ORDERED that the Motion for Attorney’s Fees
Pursuant to 42 U.S.C. § 406(b) filed by Nathan E. Barnard, the
attorney for Plaintiff (Docket Entry #32) is hereby DENIED.
IT IS SO ORDERED this 23rd day of January, 2017.

______________________________
KIMBERLY E. WEST
UNITED STATES MAGISTRATE JUDGE

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