Davenport v. Social Security Administration
OPINION & ORDER by Magistrate Judge Kimberly E. West granting 44 Motion for Attorney Fees(sjr, Chambers)
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
WENDY R. DAVENPORT,
NANCY A. BERRYHILL, Acting
Commissioner of Social
Case No. CIV-14-132-KEW
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 #44).
Counsel requests that
he be awarded fees for legal work pursuant to 42 U.S.C. § 406(b) in
the amount of $15,635.00.
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.
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
On remand, the ALJ entered a fully favorable decision
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).
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).
Wrenn v. Astrue, 525
The only condition upon the
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 generally does not take a position on awarding the
amount requested, but does state that she has no objection to the
award in this case.
Despite the fact the source for Counsel’s
compensation is a contingency fee contract, this Court has reviewed
admonishment of the Tenth Circuit to do so and finds the time
expended to be reasonable and necessary in consideration of the
This Court has 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).
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 these fees.
To that end, any fee request pursued under §406(b) should be filed
“within a reasonable time of the Commissioner’s decision awarding
Id. (citation omitted).
In this case, Notice of Award was issued by Defendant on April
1, 2017 and received by counsel on April 3, 2017.
the subject Motion on April 28, 2017.
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
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 #44) is hereby GRANTED.
Plaintiff’s counsel is awarded fees in the amount of $15,635.00 and
Defendant is directed to pay this fee directly to counsel from the
addition, Plaintiff’s counsel shall refund the smaller amount
between the 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 May, 2017.
KIMBERLY E. WEST
UNITED STATES MAGISTRATE JUDGE
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