Opinion
Civil Action No. 4:10-1541-RMG
08-23-2012
Kenneth D. Driggers Plaintiff, v. Michael J. Astrue, Commissioner of Social Security Administration Defendant.
ORDER
This matter comes before the Court on Plaintiff's motion for an award of attorney's fees as a prevailing party in a Social Security disability matter pursuant to 28 U.S.C. § 406(b). (Dkt. No. 35) Plaintiff requests Court approval of $15,680.50, which represents a contingency fee of 25% of Plaintiff's total recovery. Plaintiff has provided the Court a copy of an attorney's fee agreement which provides that counsel will be paid a fee of 25% of the past due benefits recovered. (Dkt. No. 35-2). Plaintiff's counsel has provided to the Court an accounting of his hours of 24.9 hours. (Dkt. No. 35-4). The Court has previously awarded Plaintiff $4,104.00 for attorney's fees under the Equal Access to Justice Act ("EAJA"), 28 U.S.C, § 2412, The Government has filed a response indicating it does not object to an award of attorney's fees under 28 U.S.C. § 406(b), but notes correctly that in the event of such an award Plaintiff's counsel would be required to refund to Plaintiff the amount previously awarded under EAJA. (Dkt. No. 36). See, Astrue v. Ratliff, 130 S. Ct. 2521, 2528 (2010).
The Court, pursuant to Gisbrecht v. Barnhart, 535 U.S. 789, 897-808 (2002), begins this review by determining the fee provided for by the contingency fee agreement and tests this against a standard of reasonableness. The fee requested of $15,680.50 is in accord with the parties' contingency fee agreement. Based upon various factors normally considered in reviewing the reasonableness of an attorney's fee, the Court finds the fee requested is reasonable. Barber v. Kimbrell's, 577 F.2d 216, 226 (4th Cir. 1978). Therefore, the Court hereby approves an attorney's fee of $15,680.50 pursuant to 42 U.S.C. § 406(b). Upon receipt of payment under § 406(b), Plaintiff's counsel shall refund to Plaintiff the amount of $4,104.00 previously awarded under EAJA to the extent such fees have actually been received by Plaintiff's counsel,
Plaintiff's counsel has indicated that he has not yet received the EAJA fees the Court awarded in this matter. (Dkt. No. 35-1 at 2 n. 1]). Counsel's obligation to reimburse Plaintiff for the attorney fees awarded under EAJA is, of course, dependent upon the EAJA fees actually being paid to Plaintiff's counsel.
AND IT IS SO ORDERED.
_________________
Richard Mark Gergel
United States District Judge
Charleston, South Carolina
August 23, 2012