Hillier v. Commissioner of Social Security Administration
Filing
27
MEMORANDUM OPINION AND OPINION -- The Court GRANTS Plaintiff's Motion for Attorney Fees Under 42 U.S.C. § 406(b), ECF No. 24 . All as more fully set out. Signed by Magistrate Judge Shon T. Erwin on 8/22/19. (mc)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
LISA HILLIER,
Plaintiff,
v.
COMMISSIONER OF THE SOCIAL
SECURITY ADMINISTRATION,
Defendant.
)
)
)
)
)
)
)
)
)
)
Case No. CIV-17-1269-STE
MEMORANDUM OPINION AND ORDER
This matter is before the Court on Plaintiff’s Motion for Attorney Fees Under 42
U.S.C. § 406(b), seeking an attorney fee in the total amount of $14,475.87. (ECF No. 24).
The Commissioner has responded with no objections (ECF No. 26). The response
effectively MOOTS the pending Motion for Extension of Time (ECF No. 25).
I.
PROCEDURAL BACKGROUND
Plaintiff Lisa Hillier retained the Mitzner Law Firm to appeal the SSA denial of her
application for disability insurance benefits. (ECF No. 24-1). The contract between Ms.
Hillier and Miles L. Mitzner provided for payment of an attorney fee contingent upon Ms.
Hillier prevailing before the federal court and ultimately being awarded benefits by the
SSA. Under the contract, Ms. Hillier agreed to an attorney fee in the amount of twentyfive percent (25%) of any past-due benefits awarded. See ECF No. 24-1.
Plaintiff prevailed in federal court. In an Order and Judgment dated July 5, 2018
the Court reversed the decision of the SSA and remanded the case for further
administrative findings. (ECF Nos. 18 & 19). On remand, Plaintiff was awarded past-due
benefits of $57,903.50 from which the SSA withheld $6,000.00 for payment to Ms. Hillier’s
lawyer. See ECF No. 24-2:3. Pursuant to 42 U.S.C. §406(b) and citing the contractual
agreement between the parties and Gisbrecht v. Barnhart, Plaintiff requests an attorney
fee award in the total amount of $14,475.87 which represents twenty-five percent (25%)
of the past-due benefits awarded. (ECF No. 24-1:1)
II.
FEES FOR REPRESENTATION
Congress has prescribed specific limitations on the amount of fees which may be
awarded for representation of Social Security claims. See 42 U.S.C. § 406. Section 406
“deals with the administrative and judicial review stages discretely: § 406(a) governs fees
for representation in administrative proceedings; § 406(b) controls fees for representation
in court.” Gisbrecht v. Barnhart, 535 U.S. 789, 794 (2002). Subsection 406(b) provides:
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. . .
42 U.S.C. § 406(b)(1)(A). Any such payment must be made “out of, and not in addition
to,” the past-due benefits owed to the claimant. Id. This subsection “does not displace
contingent-fee agreements as the primary means by which fees are set for successfully
representing Social Security benefits claimants in court” so long as the agreed-upon
amount stays within the statute’s “25 percent boundary.” Gisbrecht v. Barnhart, 535 U.S.
at 789. For a fee request that lies within this boundary, “the attorney for the successful
2
claimant” still “must show that the fee sought is reasonable for the services rendered.”
Id. If attorney fees are also awarded under EAJA, Plaintiff’s counsel is to refund the
smaller amount to Plaintiff. Weakley v. Bowen, 803 F.2d 575 (10th Cir. 1986).
III.
AWARD OF §406(b) FEES
Mr. Mitzner has requested §406(b) fees in the amount of $14,475.87 and has
attached a detailed billing summary reflecting a total of 30.10 hours expended at the
judicial level, but does not include a statement of the lawyer’s normal hourly billing rate
for non-contingent-fee cases. However, the amount requested does not exceed twentyfive percent (25%) of the total awarded past-due benefits, which would equal
$14,475.87. The Court has reviewed the file and finds this amount to be reasonable.
IV.
PLAINTIFF’S AWARD OF ATTORNEY FEES UNDER THE EQUAL ACCESS TO
JUSTICE ACT (EAJA)
On October 18, 2018 Plaintiff was awarded EAJA attorney fees in the amount of
$5,000.00 as the prevailing party. See ECF No. 21. Plaintiff’s attorney therefore must
refund the lesser of the two fees to Plaintiff. See Weakley v. Bowen, 803 F.3d 575, 580
(10th Cir. 1986).
ORDER
The Court GRANTS Plaintiff’s Motion for Attorney Fees Under 42 U.S.C. § 406(b),
(ECF No. 24). Plaintiff’s attorney, Miles L. Mitzner, is awarded total attorney’s fees in
the amount of $14,475.87, to be paid out of the past-due benefits Plaintiff received by
reason of the remand and favorable decision in this case. See 42 U.S.C. 406(b)(1)(A).
3
Plaintiff’s attorney shall refund the attorney fees awarded under the EAJA (ECF No. 23).
See Weakley v. Bowen, 803 F.3d 575, 580 (10th Cir. 1986).
The SSA shall pay this amount directly to: Miles L. Mitzner of Mitzner Law Firm,
PLLC., P.O. Box 5700, Edmond, Oklahoma 73083.
ENTERED on August 22, 2019.
4
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?