Nau v. Astrue

Filing 34

MEMORANDUM DECISION denying 32 Motion for Attorney Fees. Signed by Magistrate Judge Dustin B. Pead on 04/13/2015. (tls)

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION

DESIREE NAU,
Plaintiff,

MEMORANDUM DECISION &
ORDER

v.
Case No. 2:12-cv-00985
CAROLYN W. COLVIN, as Acting
Commissioner of Social Security,

Magistrate Judge Dustin Pead

Defendant.

All parties in this case consented to having United States Magistrate Judge Dustin B.
Pead conduct all proceedings, including entry of final judgment, with appeal to the United State
Court of Appeals for the Tenth Circuit. See 28 U.S.C. § 636(c); Fed. R. Civ. P. 73 (Dkt. No. 26).
Currently before the Court is Plaintiff Desiree Nau’s (Plaintiff) “Motion For
Authorization Of Attorney Fees” pursuant to 42 U.S.C. §406(b). In support of the motion,
Plaintiff’s counsel David Parker (Counsel) has submitted an “Affidavit of Attorney Fees” seeking
compensation for 45.2 hours of billing at $185.00 per hour for a total award of $8,452.40 (Dkt.
No. 32-1). Recognizing that it is not a party to § 406(b) fee awards, Defendant Commissioner of
Social Security (Commissioner) objects to the motion and asserts that Counsel does not qualify
for fees under the statute (Dkt. No. 33). Plaintiff has not filed a reply to the Commissioner’s
opposition, and the time within which to do so has expired. See DUCivR 7-1 (b)(3)(B) (“A reply
memorandum to such opposing memorandum may be filed at the discretion of the movant within
fourteen (14) days after service of the memorandum opposing the motion.”).

ANALYSIS
Attorneys in social security cases may seek compensation for their work under either the
Equal Access To Justice Act (EAJA) or the Social Security Act (SSA). “EAJA fees and fees
available under § 406 [of the SSA] are two different kinds of fees that must be separately
awarded.” Frazier v. Apfel, 240 F.3d 1284, 1286 (10th Cir. 2001). Specifically, “EAJA fees are
awarded based on a statutory maximum hourly rate, while SSA fees are based on reasonableness,
with a maximum of twenty-five percent of claimant’s past-due benefits.” McGraw v. Barnhart,
540 F.3d 493, 497 (10th Cir. 2006). Here, Counsel seeks fees under §406, which states in
relevant part:
Whenever a court renders a judgment favorable to a claimant under this
subchapter [Title II] 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. . . . In case of any such judgment, no other fee may be payable
or certified for payment for such representation except as provided in this
paragraph.
42 U.S.C. § 406(b)(1)(A).
Based upon the language of the statue, this court concludes that: (1) Counsel has not
submitted sufficient documentation to support an award of past-due benefits; and (2) Counsel has
not established his entitlement, if any, to past due benefits is by reason of the court’s judgment.
See McGraw 540 F.3d at 499.
Accordingly, Plaintiff’s Motion For Attorney Fees is hereby DENIED (doc. 32). To the
extent that Counsel has documentation or evidence to rebut the court’s conclusions he may
request reconsideration of the motion.

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IT IS ORDERED.
DATED this 13th day of April, 2015.
BY THE COURT:

____________________________________
Dustin Pead
U.S. Federal Magistrate Judge

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