Bailey v. Social Security Administration

Filing 31

OPINION AND ORDER by Judge Frank H. Seay granting 29 MOTION for Attorney Fees under 42 U.S.C. 406b filed by Larita G. Bailey in the amount of $10,000.00. (adw, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
LARITA G. BAILEY,

)
)
)
)
)
)
)
)
)
)

Plaintiff,
v.
CAROLYN W. COLVIN1, Commissioner
Social Security Administration
Defendant.

No. CIV-11-053-FHS-SPS

OPINION AND ORDER

Plaintiff’s counsel filed a Motion For Attorney Fees Pursuant
to 42 U.S.C. § 406(b) (Dkt. No. 29) on May 1, 2014. Judgment was
entered in favor of Plaintiff on September 24, 2012, remanding
this action to the Commissioner under sentence four of 42 U.S.C.
§ 405(g).

On remand, the Commissioner issued a November 26,

2013, decision finding in favor of Plaintiff with a disability
beginning

in

April

2008.

On

April

24,

2014,

the

plaintiff

received a Notice of Award letter.

Attorney fees are awardable under 42 U.S.C. § 406(b)(1) when
a

social

1

security

claimant

is

awarded

disability

benefits

The Court has been informed by Defendant that on February
14, 2013, Carolyn W. Colvin became the Acting Commissioner of
Social Security. Pursuant to Rule 25 (d) of the Federal Rules of
Civil Procedure, Carolyn W. Colvin is automatically substituted
for Michael J. Astrue as the defendant in this action. Thus,
this suit will proceed with this substitution in effect. See 42
U.S.C. Sec. 405 (g) (“Any action instituted in accordance with
this subsection shall survive notwithstanding any change in the
person occupying the office of Commissioner of Social Security or
any vacancy in such office.”)
1

following a remand from a federal district court.
Barnhart,

450

F.3d

493,

(10th

496

Cir.

2006).

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.
at 505.
award

Id.

The McGraw Court noted, however, that “[a] motion for an

of

reasonable
benefits.”

fees
time

under
of

§

406(b)(1)

the

should

Commissioner’s

be

filed

decision

within

a

awarding

Id. The Court finds it appropriate to authorize

Plaintiff’s counsel to file his § 406(b)(1) motion for attorney
fees following the receipt of the April 24, 2014, Notice of
Awards. Plaintiff filed his Motion for Attorney fees on May 1,
2014. 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 is entitled to file his motion within a
reasonable

time

of

being

informed

of

the

past-due

benefits

amount. The court finds the Plaintiff’s Motion is timely filed.

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
$10,000.00 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 $10,000.00.

The Commissioner

has filed an informative response on the various points of law to
be considered, but does not challenge the reasonableness of the
2

requested fee. The Court has conducted an independent review of
the

record,

including

the

contingency-fee

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 $10,000.00 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); see also Wren v. Astrue,
525 F.3d 931, 937 (10th Cir. 2008)(“the 25% limitation of fees
for court representation found in § 406(b) is not itself limited
by the amount of fees awarded by the Commissioner”).

Consequently, Plaintiff’s counsel’s Motion For Attorney Fees
Pursuant to 42 U.S.C. § 406(b) (Dkt. No. 27) is granted in the
amount of $10,000.00.

Pursuant to Weakley v. Bowen, 803 F.2d

575, 580 (10th Cir. 1986), Plaintiff's counsel is directed to
refund

to

Plaintiff

previously

awarded

the
under

smaller
the

(“EAJA”), 28 U.S.C. § 2412(d).
amount, without any

amount

Equal

of

Access

fees
to

($6,619.00)
Justice

Act

This refund is for the full EAJA

withholding, offset, or deduction.

It is so ordered this 15th day of May, 2014.

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