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finding no refund or offset of the EAJA fees was required as those fees were paid directly to the plaintiff and not his attorney
Summary of this case from Kiefer v. ColvinOpinion
Case No. 1:09-cv-789
08-06-2012
JUSTIN RHOADS, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
Hon. Janet T. Neff
REPORT AND RECOMMENDATION
This matter is before the Court on Plaintiff counsel's Motion for Award of Attorney Fee Pursuant to 42 U.S.C. § 406(b) . (Dkt. #25). Plaintiff's counsel seeks $6,480.00 in fees. Pursuant to 28 U.S.C. § 636(b)(1)(B), the undersigned recommends that Plaintiff's motions be granted.
On October 5, 2010, the undersigned recommended that the Commissioner's decision be reversed and this matter be remanded for further factual findings pursuant to sentence four of 42 U.S.C. § 405(g). This recommendation was subsequently adopted by the Honorable Janet T. Neff. Plaintiff was subsequently awarded disability benefits, including past-due benefits in the amount of sixty-three thousand, nine-hundred eighty-two dollars ($63,982.00). (Dkt. #25, Exhibit A).
Counsel now submits the present motion seeking an award of fees and costs pursuant to the contingent fee arrangement into which he and Plaintiff entered. (Dkt. #25, Exhibit C). According to this fee arrangement, Plaintiff agreed to pay counsel a fee equal to "twenty-five percent (25%) of the past-due benefits" if his claim was successful. Id. In this case, twenty-five percent of the amount Plaintiff was awarded in past-due benefits equals fifteen-thousand, nine-hundred ninety-five dollars and fifty cents ($15,995.50). (Dkt. #25, Exhibit A).
The Social Security Act provides that "whenever 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). Counsel is requesting $6,480.00 in fees for work performed in this Court, a request which is reasonable and consistent with his fee agreement with Plaintiff. Finally, while the Court previously awarded fees and costs under the Equal Access to Justice Act (EAJA), (dkt. #23-24), no offset of this previous award is required as the EAJA fees were paid directly to Plaintiff not his attorney. See Gisbrecht v. Commissioner of Soc. Sec., 535 U.S. 789, 795-96 (2002).
Counsel asserts that he will be seeking, in "a separate fee petition," an additional $6,000.00 in fees for work performed at the administrative level. This approach seems appropriate as fee petitions for work performed at the administrative level cannot be resolved by this Court, but must instead be approved by the Commissioner of Social Security. See 42 U.S.C. § 406(a).
Accordingly, the undersigned recommends that the present motion be granted and that counsel be awarded $6,480.00 (six-thousand, four-hundred, eighty dollars) in fees and costs pursuant to 42 U.S.C. § 406(b).
CONCLUSION
For the reasons articulated herein, the undersigned recommends that Plaintiff counsel's Motion for Award of Attorney Fee Pursuant to 42 U.S.C. § 406(b) , (dkt. #25), be granted and counsel awarded $6,480.00 (six-thousand, four-hundred, eighty dollars) in fees and costs pursuant to 42 U.S.C. § 406(b).
OBJECTIONS to this Report and Recommendation must be filed with the Clerk of Court within fourteen (14) days of the date of service of this notice. 28 U.S.C. § 636(b)(1)(C). Failure to file objections within the specified time waives the right to appeal the District Court's order. See Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir.1981).
Respectfully submitted,
________________________
ELLEN S. CARMODY
United States Magistrate Judge