Keith v. Commissioner of Social Security
Filing
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ORDER granting 25 Motion for Attorney Fees. Signed by Honorable Robin J. Cauthron on 4/5/16. (lg)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
DANIEL L. KEITH,
Plaintiff,
vs.
CAROLYN COLVIN, Acting
Commissioner of the Social Security
Administration,
Defendant.
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Case Number CIV-12-1217-C
MEMORANDUM OPINION AND ORDER
Plaintiff’s application for disability insurance benefits and supplemental security
income payments was denied by the Social Security Administration. Plaintiff then filed the
present action seeking review of the Agency’s decision. On January 16, 2014, the Court
remanded the matter to the Commissioner. On remand, the Commissioner issued a Notice
of Award, awarding Plaintiff back benefits. Plaintiff’s counsel now seeks an award of
attorney’s fees pursuant to 42 U.S.C. § 406(b).
The contingent fee agreement executed between Plaintiff and his counsel indicated
that if Plaintiff were awarded benefits he would pay counsel a fee not exceeding 25% of the
past due award. Now that the Notice of Benefit has been issued, counsel seeks an award of
attorney fees in accord with that agreement. Plaintiff also seeks an Order pursuant to
Fed. R. Civ. P. 60, reopening the case so that this motion for attorney fees is considered
timely filed.
The Court will consider the Rule 60 Motion first. Plaintiff’s request to reopen the
case is in accordance with the procedure set forth by the Tenth Circuit in McGraw v.
Barnhart, 450 F.3d 493 (10th Cir. 2006). The Notice to Plaintiff of an award of past due
benefits was issued on March 8, 2016, and Plaintiff filed the present Motion on March 29,
2016. The Court finds Plaintiff’s request was timely made. Defendant offers no argument
in opposition to reopening the case. The Court finds the Motion is timely, grants Plaintiff’s
request, and reopens the case for the purpose of considering an award of attorney’s fees.
In the request for fees, Plaintiff’s counsel seeks a fee of $15,125.00. Governing this
request is 42 U.S.C. § 406(b)(1)(A), which states:
Whenever a court renders a judgment favorable to a claimant under this
subchapter who was represented before the court by an attorney, the court may
determine and allow as part of its judgment a reasonable fee for such
representation, not in excess of 25 percent of the total of the past-due benefits
to which the claimant is entitled by reason of such judgment . . . .
Where a contingent fee agreement is in place, the Court must examine the reasonableness of
its terms and reduce an award as appropriate “based on the character of the representation
and the results the representative achieved.” Gisbrecht v. Barnhart, 535 U.S. 789, 808
(2002). In support of the motion, counsel has attached a time report demonstrating that
counsel expended approximately 26.3 hours of attorney time in performing the work before
the Court. After considering the extent of work performed, the result obtained, and the fee
award sought, the Court finds the amount to be a reasonable fee for the work performed.
Indeed, the benefits awarded to Plaintiff certainly justify the amount of time spent by the firm
handling the case and the evidence before the Court offers nothing to suggest that the
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character of the representation or the results achieved were in any way deficient. Because
Plaintiff’s counsel previously sought and received a fee award pursuant to EAJA, in the
amount of $4,888.60, that award must be refunded to Plaintiff. Accordingly, Plaintiff’s
counsel shall refund $4,888.60 to Plaintiff.
As set forth more fully herein, “Plaintiff’s Motion for Relief Pursuant to
Fed. R. Civ. P. § 60(b)(6)” (Dkt. No. 25) is GRANTED. Plaintiff’s counsel is awarded a fee
in the amount of $15,125.00. Because Plaintiff was previously awarded fees under the
EAJA, he is entitled to a refund of the smaller EAJA award which Plaintiff’s counsel shall
forward immediately upon receipt of the fees awarded herein.
IT IS SO ORDERED this 5th day of April, 2016.
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