Opinion
C19-5476-RSM
12-16-2021
ROBERT DARRELL KING, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
ORDER GRANTING PLAINTIFF'S AMENDED MOTION FOR ATTORNEY'S FEES UNDER 42 U.S.C. § 406(B)
RICARDO S. MARTINEZ CHIEF UNITED STATES DISTRICT JUDGE
This matter comes before the Court on Plaintiff Robert King's Amended Motion for $40, 541.25 in attorney's fees under 42 U.S.C. § 406(b). Dkt. #26. Defendant Commissioner of Social Security does not object to the total amount sought. However, the Government opposes Plaintiff's motion to the extent it improperly treats the Equal Access to Justice Act (“EAJA”) offset as part of the calculation of 25% past-due benefits, such that Plaintiff's request for 16% of past-due benefits is incorrect. Dkt. #27.
The Court finds no error in the Government's argument that Plaintiff's past-due benefits in this case total $185, 403.40 such that Plaintiff's counsel's request for a total of $40, 541.25 constitutes 21.9% of past due benefits. Indeed, although Plaintiff's amended motion incorrectly 1 cites this figure as 16%, the proposed order attached to the motion lists 21%. See Dkt. #26 at 11. After deduction of the EAJA fees totaling $9, 780.00, see Dkt. #20, that leaves $30, 761.25 in fees under section 406(b).
Furthermore, the Government requests that this Court clarify the source of payments and actions taken in the event of insufficient funds available to satisfy the award, given that the Commissioner is not obligated to pay section 406(b) fees from its general fund. Plaintiff has not objected to this request and the Court finds no basis for denial.
CONCLUSION
Accordingly, having reviewed Plaintiff's Motion, the exhibits and declarations attached thereto, Defendant's Response, and the remainder of the record, the Court ORDERS as follows:
(1) Plaintiff's Amended Motion for § 406(b) fees, Dkt. #26, is GRANTED. It is ORDERED that reasonable fees in the amount of $40, 541.25 are awarded to Plaintiff's attorney, Michael Gilbert, pursuant to 42 U.S.C. § 406(b). Upon receipt, counsel will refund directly to Plaintiff the $9, 780.00 in Equal Access to Justice Act (“EAJA”) fees of that were previously awarded;
(2) This payment of fees comprises 21.9% of Plaintiff's past-due benefits;
(3) Any payment of fees is from the claimant's withheld past-due benefits. If the Commissioner has not withheld past-due benefits sufficient to satisfy this order and Plaintiff's attorney reports he is unable to collect the fee from the claimant, the Commissioner will satisfy this Order via the procedures in Program Operation Manual System (POMS) GN 03920.055.C.
IT IS SO ORDERED. 2