Cox-Williams v. Social Security Administration
Filing
34
AMENDED OPINION AND ORDER by Magistrate Judge Kimberly E. West (Re: 33 Ruling on Motion for Attorney Fees) (sjr, Chambers)
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
TRACY RANDELL COX-WILLIAMS,
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Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of Social
Security Administration,
Defendant.
Case No. CIV-14-089-KEW
AMENDED OPINION AND ORDER
This matter comes before this Court on the Motion for Attorney
Fees Pursuant to 42 U.S.C. § 406(b) filed by Timothy M. White, the
attorney for Plaintiff (Docket Entry #30).
Counsel requests that
he be awarded fees for legal work pursuant to 42 U.S.C. § 406(b) in
the amount of $5,799.25.
Counsel was employed by Plaintiff to
appeal the adverse decision rendered by Administrative Law Judge
presiding over the request for benefits.
To that end, Counsel
entered into a contract for compensation with Plaintiff, providing
for the payment of a fee equal to 25% of any past due benefits
ultimately awarded to Plaintiff.
Such contracts are recognized as
valid under the prevailing case authority.
Gisbrecht v. Barnhart,
535 U.S. 789, 807 (2002).
Counsel filed Plaintiff’s opening brief and reply.
was successful in this appeal.
Plaintiff
As a result, 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
$5,013.20.
On remand, the ALJ entered a fully favorable decision
and awarded past due benefits of $23,197.00.
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).
Counsel’s requested fees do not exceed either the amount contracted
for in the contingency fee agreement or the limitations of §406(b).
Defendant does not take a position on awarding the amount
requested. Defendant reiterates that Counsel has been compensated
by EAJA and must refund the smaller of any EAJA award and the
amount awarded under § 406(b) to prevent a double recovery by the
attorney.
Kemp v. Bowen, 822 F.2d 966, 968 (10th Cir. 1987).
Counsel will be required to make the refund.
This Court has also evaluated Counsel’s request for its
timeliness.
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
served
by
permitting its use in the circumstance faced by counsel in seeking
2
these fees.
§406(b)
Id.
should
Commissioner’s
To that end, any fee request pursued under
be
filed
decision
“within
awarding
a
reasonable
benefits.”
time
Id.
of
the
(citation
omitted).
In this case, Notice of Award was issued by Defendant on
August 8, 2016.
Plaintiff’s counsel filed a Rule 60(b)(6) motion
requesting an extension of time to file a § 406(b) request.
this
Court allowed Counsel until 30 days after the receipt of a Notice
of Award by which to file a request for fees.
subject Motion on September 9, 2016.
Counsel filed the
This Court cannot find the
delay which occurred in this case warrants the draconian result of
denying an award of fees.
Therefore, the request is considered
timely.
IT IS THEREFORE ORDERED that the Motion for Attorney Fees
Pursuant to 42 U.S.C. § 406(b) filed by Timothy M. White, the
attorney for Plaintiff (Docket Entry #30) is hereby GRANTED.
Plaintiff’s counsel is awarded fees in the amount of $5,799.25 and
Defendant is directed to pay this fee directly to counsel from the
amount
of
past
due
benefits
withheld
for
that
purpose.
In
addition, Plaintiff’s counsel shall refund the smaller amount
between any EAJA fees already awarded and the § 406(b) fees awarded
in this decision to Plaintiff. Weakley v. Bowen, 803 F.2d 575, 580
(10th Cir. 1986).
IT IS SO ORDERED this 19th day of October, 2016.
______________________________
KIMBERLY E. WEST
UNITED STATES MAGISTRATE JUDGE
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