Neptune v. Commissioner of the Social Security Administration

Filing 40

ORDER granting 35 Motion for Attorney Fees per Rule 406b in the amount of $17,930.25. The court orders Defendant to certify and release the $17,930.25 remainder of the past-due benefits to Counsel. Signed by Honorable J Michelle Childs on 9/8/2017.(gnan )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION
WILLIAM DELEON NEPTUNE,
Plaintiff,
v.
NANCY A. BERRYHILL,
Acting Commissioner
of Social Security,
Defendant.

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Civil Action No. 4:14-cv-03319-JMC

ORDER

This matter is before the court upon motion (ECF No. 35) by Plaintiff’s attorney, Beatrice
E. Whitten (“Counsel”), for an award of attorney’s fees pursuant to 42 U.S.C. § 406(b). On
August 2, 2017, Counsel filed a Motion for Attorney’s Fees seeking the authorization of payment
for Counsel’s representation in the captioned matter in the amount of $17,930.25. (ECF No. 35.)
$17,930.25 amounts to 25% of Plaintiff’s past due benefits withheld by Defendant. (See Notice
of Award, ECF No. 35-3.) Defendant’s Response to Plaintiff’s Motion for Approval of
Attorney’s Fees notifies the court that she does not oppose Plaintiff’s request for fees in the
amount stated herein; however, Defendant notes that the fees are only for Counsel’s time in
court. (ECF No. 37.)
42 U.S.C. § 406(b)(1)(A) provides that “[w]henever a court renders a judgment favorable
to a claimant . . . 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). When the contingency fee agreement and requested
fee do not exceed 25% of the past-due benefits, “the attorney for the successful claimant must
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show that the fee sought is reasonable for the services rendered.” Gisbrecht v. Barnhart, 535 U.S.
789, 807 (2002).
After reviewing Counsel’s supporting memorandum (ECF No. 35-1), Plaintiff’s Attorney
Fee Agreement (ECF No. 35-2), and the Social Security Administration’s Notice of Award (ECF
No. 35-3), the court concludes Counsel’s request for attorney’s fees satisfies the requirements of
Grisbrecht and the reasonableness requirements of § 406(b)(1)(A).
Counsel has not previously received any compensation in this case. Previously, the Court
granted $7,500 of fees under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412. (ECF
No. 34.) Normally, those funds are to be refunded to Plaintiff in full. See Gisbrecht v. Barnhart,
535 U.S. 789, 796 (2002) (noting that when both EAJA and 406(b) fees are awarded, a
claimant’s attorney, not the Commissioner, refunds to the claimant the smaller amount).
However, the Federal government seized the entire EAJA fee to pay the claimant’s child support
debt, and Counsel did not receive any of the EAJA fee. See Letter from Dep’t of the Treasury
Bureau of the Fiscal Serv. to William Deleon Neptune (Apr. 12, 2016) (ECF No. 35-4.) As a
result, Counsel is not required to remit the EAJA fee.
The court authorizes a payment to Counsel, Beatrice E. Whitten, for attorney’s fees under
42 U.S.C. 406(b) in the amount of $17,930.25 being withheld from Plaintiff’s past-due benefits.
Counsel’s Motion for Attorney Fees (ECF No. 35) is GRANTED, and the court orders
Defendant to certify and release the $17,930.25 remainder of the past-due benefits to Counsel.
IT IS SO ORDERED.

United States District Judge
September 8, 2017
Columbia, South Carolina

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