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Kemp v. Commissioner of Social Security

United States District Court, E.D. Michigan, Southern Division

September 27, 2019

MATTHEW THOMAS KEMP, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          OPINION & ORDER GRANTING IN PART MOTION FOR ATTORNEY FEES (DKT. 24)

          MARK A. GOLDSMITH UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on Plaintiff’s motion for an award of attorney fees under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412, and an award of fees under 42 U.S.C. § 406(b) (Dkt. 24). On February 23, 2017, the underlying case was remanded under sentence four by stipulation of the parties (Dkt. 22). A judgment was entered on that same day (Dkt. 23). More than two years later, Plaintiff filed the present motion seeking $10, 072.75 in attorney fees under the EAJA and $46, 536.25 in attorney fees under 42 U.S.C. § 406(b). The Commissioner filed a response arguing that the request for fees under the EAJA is untimely and that any award under § 406(b) should be reduced. Resp. at 19 (Dkt. 25). No. reply brief was filed. For the reasons discussed below, the motion is granted in part.

         I. APPLICABLE LAW

         There are two statutes under which a plaintiff may recover attorney fees in a Social Security disability case. First, under the EAJA, a plaintiff may recover attorney fees paid by the Government. See 28 U.S.C. § 2412. Second, as part of the judgment in plaintiff’s favor, a court may award a reasonable fee for an attorney’s representation paid out of a plaintiff’s past-due benefits. See 42 U.S.C. § 406(b). The fee awarded under § 406(b) may not exceed 25% of the total past-due benefits. 42 U.S.C. § 406(b)(1)(A); Lasley v. Comm’r of Soc. Sec., 771 F.3d 308, 309 (6th Cir. 2014). If fees are awarded under both the EAJA and § 406(b), counsel must refund the smaller amount to the plaintiff. Gisbrecht v. Barnhart, 535 U.S. 789, 796 (2002).

         II. DISCUSSION

         A. EAJA Attorney Fees

         The EAJA provides that “a court shall award to a prevailing party . . . fees and other expenses . . . in any civil action . . . brought by or against the United States . . . unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust.” 28 U.S.C. § 2412(d). The statute provides that the prevailing party’s motion for attorney fees must be filed “within 30 days of final judgment in the action.” 28 U.S.C. § 2412(d)(1)(B). A “final judgment” is defined in the statute as “a judgment that is final and not appealable.” 28 U.S.C. § 2412(d)(2)(G).

         Judgment in this case was entered on February 23, 2017, which started the sixty-day period for appealing the claim. Shalala v. Schaefer, 509 U.S. 292, 302 (1993). After the sixty-day appeal period expired, Plaintiff’s attorney had thirty days to file an application for EAJA fees. Id.; 28 U.S.C. § 2412(d)(1)(B). No. application was filed. EAJA fee applications are nonetheless subject to equitable tolling, Townsend v. Comm’r of Soc. Sec., 415 F.3d 578, 583 (6th Cir. 2005); however, Plaintiff’s counsel did not raise the timeliness issue in his motion and failed to file a reply brief to address the matter.

         Because Plaintiff’s motion under the EAJA is untimely and Plaintiff’s counsel fails to provide any basis to equitably toll the application period, the motion is denied as to fees under the EAJA.

         B. Attorney Fees Under 42 U.S.C. § 406(b)

         Fees under 42 U.S.C. § 406(b), unlike those under the EAJA, are paid from the claimant’s past due benefits. Section 406(b) attorney fees are awarded to a claimant who succeeds on his Social Security appeal, not to exceed 25% of the total past-due benefits to which the claimant is entitled:

(b) Fees for representation before court
(1) (A) Whenever a court renders a judgment favorable to a claimant under [42 U.S.C. § 401 et seq.] 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, and the Commissioner of Social Security may, notwithstanding the provisions of section 405(i) of this title, but subject to subsection (d) of this section, certify the amount of such fee for payment to such attorney out of, and not in addition to, the amount of such past-due benefits. 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). The Supreme Court has explained, “§ 406(b) does not displace contingent-fee agreements as the primary means by which fees are set for successfully representing Social Security benefits claimants in court. Rather, § 406(b) calls for court review of such arrangements as an independent check, to assure that they yield ...


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