United States District Court, S.D. Ohio, Western Division
HAROLD E. JONES, Plaintiff,
COMMISSIONER OF SOCIAL SECURITY, Defendant,
L. Litkovitz United States Magistrate Judge
matter is before the Court on plaintiffs motion for attorney
fees under the Social Security Act, 42 U.S.C. §
406(b)(1) (Doc. 24) and the Commissioner's response in
opposition to the motion (Doc. 25).
August 10, 2016, the Court reversed the decision of the
Commissioner and remanded this matter for further
administrative proceedings pursuant to Sentence Four of 42
U.S.C. § 405(g). (Doc. 22). On remand, the Commissioner
determined that plaintiff was disabled. (See Notice
of Award, Doc. 24, Exh. A). Plaintiff represents that $6,
000.00 in attorney fees have been awarded and paid to counsel
for work performed at the administrative level. (Id.
at 1; Exh. B at 2). Plaintiff asserts that acting pursuant to
§ 406(b)(1)(A), the Commissioner withheld 25 percent of
past-due benefits - or $16, 926.00 - as a potential
contingency fee to be awarded to plaintiffs counsel. (Doc. 24
at 1; Exh. A at 3). From that amount, plaintiff now seeks an
award of $6, 200.00 in attorney fees available under §
406(b) for work counsel performed before the Court. (Doc. 24
at 3). The $6, 200.00 requested represents approximately 21
percent of plaintiffs past-due benefits payable through
December 2016 ($56, 748.86), less the amount awarded by the
Commissioner for work performed at the administrative level
($6, 000). (Id. at l, 3;Exh. Aat3;Exh. B).
Commissioner argues that the Court must deny plaintiffs
motion based on a lack of documentation as to (1) the amount
of time counsel spent working on this case in the district
court, and (2) counsel's hourly rate. The Commissioner
does not object to the Court giving plaintiff an opportunity
to submit the necessary documentation.
has not supported the motion for attorney fees with a time
record from his counsel detailing the amount of time counsel
spent on each task related to the prosecution of this case in
the district court. Nor has plaintiff provided an affidavit
or other evidence from counsel in support of the requested
hourly rate, including counsel's non-contingent fee
hourly rate. Thus, the Court cannot determine from the record
whether the hours counsel spent on this case and the hourly
rate requested are reasonable.
plaintiff states that attorney fees were not sought or
awarded under the Equal Access to Justice Act
("EAJA"), 28 U.S.C. § 2412(d). (Doc. 24 at 3).
The Court notes that the time for doing so has expired.
See 28 U.S.C. § 2412(d)(1)(B) (providing that a
party seeking an EAJA award must submit an application within
30 days of final judgment); Jones v. Comm'r of Social
Security, No. l:14-cv-748, 2017 WL 1745569, at *4 (S.D.
Ohio May 04, 2017). This Court has previously held that where
an attorney fails to submit an EAJA fee application on his
client's behalf, a deduction from counsel's §
406(b) award equal to the amount the plaintiff likely would
have received had plaintiffs counsel submitted an EAJA fee
application is appropriate. Jones, 2017 WL 1745569,
at *4. The undersigned explained the reasons for the
deduction in Jones:
[A]n EAJA award "is authorized against the public fisc,
" but a § 406(b) award "comes out of the
claimant's disability monies." Meyers v.
Heckler, 625 F.Supp. 228, 231 (S.D. Ohio 1985) (citing
Eustache v. Sec 'y of Dep 't of Health &
Human Servs., 601 F.Supp. 176, 178 (E.D.N.Y. 1985)).
Further, "[a]n application under the EAJA is deemed to
be made on behalf of the claimant by counsel, rather than, as
with section 406, by counsel 'against' his or her
client and on his or her own behalf." Id.
(quoting Eustache, 601 F.Supp. at 178).
"Accordingly, any funds awarded pursuant to the EAJA
serve as a reimbursement to the claimant for fees paid out of
his or her disability award to his or her counsel."
Given this relationship between § 406(b) and the EAJA,
the Southern District of Iowa has concluded: "Nowhere is
there a greater conflict of interest involved than in the
fee-settings involved in Social Security disability matters,
especially when an attorney only seeks payment from
[his] client and does not attempt to shift fee payment to the
government." Shepherd v. Apfel, 981 F.Supp.
1188, 1192 (S.D. Iowa 1997) (emphasis retained). See also
Taylor v. Heckler, 608 F.Supp. 1255, 1259 (D.N.J. 1985)
("The court believes that more frequent invocation of
the EAJA will have an additional salutary effect: it will
ameliorate the conflict of interest between attorney and
client."). Faced with fee motions under § 406(b) by
attorneys who did not submit EAJA applications, courts have
reduced the amount of a § 406(b) award by the amount
that likely would have been awarded under the EAJA if an EAJA
application had been granted. See, e.g., Dixon v. Comm
'r of Soc. Sec., No. 10-cv-5703, 2013 WL 5299561, at
*4 (D.N.J. Sept. 18, 2013) (reducing § 406(b) award by
the $5, 643.75 that likely would have been awarded if counsel
had filed an EAJA application); Harlow v. Astrue,
610 F.Supp.2d 1032, 1035 (D. Neb. 2009) (declining to award
any of the $5, 524.60 requested under § 406(b) because
counsel "might have recovered up to $7, 517.13 if he had
applied for an award of attorney fees under the EAJA");
Benton v. Comm V of Soc. Sec, No.
03-CV-3154, 2007 WL 2027320, at *3 (E.D.N.Y. May 17, 2007)
(reducing § 406(b) award by the $4, 187.50 that likely
would have been awarded if counsel had filed an EAJA
Jones, 2017 WL 1745569, at *4.
with this reasoning, a deduction from counsel's §
406(b) award equal to the amount plaintiff likely would have
received had his counsel submitted an EAJA fee application
appears to be appropriate. It is not clear why counsel did
not submit an EAJA fee application.
Court therefore will give counsel an opportunity to show
cause why the likely EAJA fee award should not be deducted
from the § 406(b) fee award, and to submit documentation
on counsel's regular hourly rate and the number of hours
devoted to work on this case before the district court,
before ruling on plaintiffs § 406(b) motion.
IS THEREFORE ORDERED THAT:
motion for attorney fees under § 406(b) is
DENIED SUBJECT TO RECONSIDERATION upon
submission of the supporting materials described above and
counsel's response to the Order to Show Cause.
counsel shall have fourteen (14)
days from the date of this Order to (1)
SHOW CAUSE, in writing, why the §
406(b) fee award should not be reduced by the amount
plaintiff likely would have received had his counsel filed an
EAJA fee application, and (2) submit documentation as to
counsel's regular hourly rate and the number of hours
counsel spent working on the case before the ...