United States District Court, E.D. Michigan, Southern Division
OPINION & ORDER GRANTING IN PART MOTION FOR
ATTORNEY FEES (DKT. 24)
A. GOLDSMITH UNITED STATES DISTRICT JUDGE.
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
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
EAJA Attorney Fees
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).
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.
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.
Attorney Fees Under 42 U.S.C. § 406(b)
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 ...