United States District Court, E.D. Michigan, Southern Division
D. BORMAN DISTRICT JUDGE.
REPORT AND RECOMMENDATION
STEVEN WHALEN UNITED STATES MAGISTRATE JUDGE.
a Social Security Disability case. The case was remanded to
the administrative level for further proceedings, where it
was consolidated with Plaintiff Peter Morgan's companion
case, E.D. Mich. Docket No. 14-11006, that case also having
been remanded. Plaintiff now seeks attorney fees under 42
U.S.C. § 406(b). Specifically, the following motions are
now before the Court, having been referred for Reports and
Recommendations under 28 U.S.C. § 636(b)(1)(B):
-Petition for Approval of Section 406(b) Attorney Fees [Doc.
-Petition to Modify Petition for Approval of § 406(b)
Fees [Doc. #40].
-Revised Petition for Approval of § 406(b) Attorney Fees
Commissioner does not oppose these motions. For the reasons
discussed below, I recommend that the Court GRANT original
Petition [Doc. #34] subject to modification, GRANT the Motion
to Modify Petition [Doc. #40], and GRANT the Revised Petition
[Doc. #43], awarding a § 406(b) attorney fee in the
amount of $6, 152.58, with 50% ($3, 076.29) being refunded to
Plaintiff Peter Morgan pursuant to the Equal Access to
Justice Act (“EAJA”).
a remand in this case under Sentence Four of 42 U.S.C. §
405(g), Plaintiff moved for attorney fees under the EAJA. The
Court denied that motion based on DeLong v. Commissioner
of Soc. Sec., 748 F.3d 723 (6th Cir. 2014),
finding that the error necessitating a remand was an
“articulation error.” However, in a companion
case, E.D. Mich. Docket No. 14-11006, which was also
remanded, the Court did award EAJA fees in the amount of $8,
002.58. Both cases were joined on remand, and the Plaintiff
was ultimately awarded $64, 629.00 is past-due benefits.
entered into a 25% contingent fee agreement. In
Horenstein v. Sec'y of HHS, 35 F.3d 261
(6th Cir. 1994), the Court held that each
decisional entity-the District Court and the administrative
tribunal-may award § 406(b) fees only for the work
specifically done before it. Plaintiff requested $16, 152.58
in § 406 attorney fees at the administrative level, and
was awarded $10, 000.00 for work performed at that level,
under § 406(a). Plaintiff now seeks the balance of $6,
152.58 to complete payment of the 25% contingent fee, under
§ 406(b), for work done in this Court.
however, although Plaintiff did not receive EAJA fees in this
case, he was awarded $8, 002.58 in EAJA fees in the companion
case. The Commissioner takes the position that an award of
§ 406(b) fees in this case would also apply to Case No.
14-11006, which would require Plaintiff's counsel
“to refund the lesser of the portion of the §
406(b) fees attributable to that case under the Savings
Clause of the Equal Access to Justice Act.”
Defendant's Unopposed Motion to Stay Adjudication of
Plaintiff's Petition for Attorney Fees [Doc. #38],
at 2, Pg. ID 733. Plaintiff agrees to that approach;
therefore, apportioning 50% of the § 406(b) fees to this
case (where no EAJA fees were awarded) and 50% to the Case
No. 14-11006 (where EAJA fees were awarded), Plaintiff Peter
Morgan is entitled to a refund of the § 406(b) fees
attributable to the companion case, that amount being 50% of
$6, 152.58, or $3, 076.29. The Commissioner does not oppose this
recommend that the Court GRANT original Petition [Doc. #34]
subject to modification, GRANT the Motion to Modify Petition
[Doc. #40], and GRANT the Revised Petition [Doc. #43],
awarding a § 406(b) attorney fee in the amount of $6,
152.58, with 50% ($3, 076.29) being refunded to Plaintiff
Peter Morgan pursuant to the Equal Access to Justice Act.
objections to this Report and Recommendation must be filed
within fourteen (14) days of service of a copy hereof as
provided for in 28 U.S.C. §636(b)(1) and E.D. Mich. LR
72.1(d)(2). Failure to file specific objections constitutes a
waiver of any further right of appeal. Thomas v.
Arn,474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985);
Howard v. Secretary of HHS,932 F.2d 505
(6th Cir. 1991); United States v.
Walters,638 F.2d 947 (6th Cir. 1981). Filing
of objections which raise some issues but fail to raise
others with specificity will not preserve all the objections
a party might have to this Report and Recommendation.
Willis v. Secretary of HHS,931 F.2d 390, 401
(6th Cir. 1991); Smith ...