The Court also notes that on a sentence six remand under 42 U.S.C. ยง 405(g), the claimant is entitled to attorneys' fees for the district court litigation and the remanded proceeding if the claimant prevails on remand. See Outlaw v. Chater, 921 F. Supp. 13, 16 (D.D.C. 1996) (finding counsel is not entitled to fees for work done before the SSA prior to filing the Complaint or for work done during remand to the SSA if remanded under sentence four of 42 U.S.C. ยง 405(g)); see also Marshall v. Comm'r of Soc. Sec., 444 F.3d 837, 840 (6th Cir. 2006) (finding attorneys' fees are available for counsel on remand under sentence six of ยง 405(g)). Remanding on sentence six alone is not sufficient to make the claimant a prevailing party, but "the result of subsequent administrative proceedings is sufficient to confer prevailing party status upon that same litigant."
Another approach would be for the district court to issue a conditional ruling. In Outlaw v. Chater, 921 F.Supp. 13, 18 (D.D.C. 1996), the court made a contingent award, "direct[ing] the defendant, in the event past-due benefits are awarded to the plaintiff, to settle a judgment of attorney's fees for [plaintiff's attorney] for the lesser of (1) 109.4 hours of work at a reasonable rate, or (2) 25 percent of the past-due benefits.
Judicial action which does not alter those relationships is not sufficient to create a prevailing party. See, e.g., Outlaw v. Chater, 921 F. Supp. 13, 16 (D.D.C. 1996) (remand of Social Security appeal to Agency for reconsideration upon finding lack of substantial evidence was not a basis for EAJA award). Because of the absence of effect upon legal relationships, and the ability to refile legal claims, a dismissal without prejudice does not support an award of fees. See, e.g., United States v. Milner, 583 F.3d 1174, 1196-97 (9th Cir. 2009).
Counsel may not receive an "unjustified windfall" from a contingent-fee agreement; in other words, the compensation may not dwarf the time spent on the case. Buljina , 828 F.Supp.2d at 115 ; see Gisbrecht , 535 U.S. at 808, 122 S.Ct. 1817. A court may review a record of hours spent on the case and the attorney's normal hourly billing fee to see if the request is out of line. Gisbrecht , 535 U.S. at 808, 122 S.Ct. 1817 ; Outlaw v. Chater , 921 F.Supp. 13, 18 (D.D.C. 1996). Counsel spent 35.9 hours on the judicial-review portion of the case and requests $25,009.
Counsel may not receive an "unjustified windfall" from a contingent-fee agreement; in other words, the compensation may not dwarf the time spent on the case. Buljina , 828 F.Supp.2d at 114 ; see Gisbrecht , 535 U.S. at 808, 122 S.Ct. 1817. A court may review a record of hours spent and the attorney's normal hourly billing fee to see if the request is out of line. Gisbrecht , 535 U.S. at 808, 122 S.Ct. 1817 ; Outlaw v. Chater , 921 F.Supp. 13, 18 (D.D.C. 1996). The Commissioner's position on reasonableness is also relevant.
The Court notes, without deciding, that this case raises certain procedural issues about when and how attorneys can petition for, and district courts can order, ยง 406(b)(1) fee awards. While courts have used various methods to justify relief, see, e.g.,Bergen v. Comm'r of Soc. Sec., 444 F.3d 1281, 1283 (11th Cir. 2006) (finding that Rule 54(d)(2), with its time limits, does not apply literally); Outlaw v. Chater, 921 F. Supp. 13, 18 (D.D.C. 1996) (issuing a conditional ruling), it appears, at first blush, that the Tenth Circuit's treatment of the issue in McGraw is procedurally the most valid. 450 F.3d at 504-05. The Tenth Circuit considered options articulated by other courts less desirable, and instead suggested that attorneys might seek fee awards under Federal Rule of Civil Procedure 60(b)(6), the catch-all provision for relief from a final judgment.
28 U.S.C. ยง 2412(d)(2)(A). See Outlaw v. Chater, 921 F.Supp. 13, 15-16 (D.D.C. 1996). This jurisdiction has also made plain that "attorney fees" and expert witness expenses are separate and distinct items of expense.
Even if such an argument had been advanced, consultant fees have been disallowed where the consultant conducted research, communicated with plaintiff's attorney and assisted plaintiff's attorney in the briefing of the case. Outlaw v. Chater, 921 F. Supp. 13, 16-17 (D.D.C. 1996); see also Dubinsky v. United States, 44 Fed. Cl. 360, 366, 366 n. 5 (1999) (declining to award consultant fees where an individual provided a "substitute for legal assistance" but did not serve as an expert witness, did not "prepare a study, analysis, engineering report, test, or project" and was not an attorney). Plaintiff did, however, argue that Mr. Interdonato should be considered an agent, see Pl.'s Supp. Appl. 4.
Even if such an argument had been advanced, consultant fees have been disallowed where the consultant conducted research, communicated with plaintiff's attorney and assisted plaintiff's attorney in the briefing of the case. Outlaw v. Chater, 921 F. Supp. 13, 16-17 (D.D.C. 1996); see also Dubinsky v. United States, 44 Fed. Cl. 360, 366, 366 n.5 (1999) (declining to award consultant fees where an individual provided a "substitute for legal assistance" but did not serve as an expert witness, did not "prepare a study, analysis, engineering report, test, or project" and was not an attorney). Plaintiff did, however, argue that Mr. Interdonato should be considered an agent, see Pl.'s Supp. Appl. 4.