Opinion
Case No. 12-cv-11336
09-09-2014
JAMES A. ROSE, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
ORDER GRANTING PLAINTIFF'S PETITION FOR ATTORNEY FEES
On March 23, 2012, Plaintiff James Rose filed a complaint against Defendant Commissioner of Social Security, seeking a reversal of the Administrative Law Judge's decision that Rose was not entitled to disability benefits. Both parties filed motions for summary judgment. Magistrate Judge Monica Majzoub issued a report recommending that Rose's motion for summary judgment be granted and the Commissioner's motion be denied because Rose was deprived of "a full and fair hearing." Rep. & Rec. 15, ECF No. 23. Judge Majzoub therefore recommended that the matter be remanded pursuant to sentence four of 42 U.S.C. 405(g). Id. Neither party filed objections to the recommendation, and therefore this Court adopted the report and remanded the case. ECF No. 24.
Following entry of judgment in his favor, Rose filed a petition for an award of attorney's fees under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412, on September 12, 2013. ECF No. 26. Rose contends that the Commissioner's position was not "substantially justified" and therefore he is entitled to attorney's fees. Rose requested an award totaling $8,266.88 pursuant to § 2412. The Court directed the Commissioner to respond to Rose's petition, ECF No. 27, but the Commissioner did not respond.
On June 27, 2014, Rose filed a petition seeking additional attorney's fees pursuant to 42 U.S.C. § 406(b). Rose requested "that $10,363.73 be awarded to counsel, in accordance with the fee agreement entered into between Plaintiff and [counsel.]" ECF No. 30 at ¶ 5. Rose's counsel also notes that "counsel shall refund the EAJA fee to Plaintiff pending the resolution of the EAJA Application." Id. at 5. The Commissioner did not oppose Rose's petition for attorney's fees pursuant to 42 U.S.C. § 406(b).
"Attorneys representing clients in social security actions may seek awards under the EAJA and under § 406. . . . However, attorneys are prohibited 'from collecting both EAJA fees and § 406(b) fees in the same case. In the situation of dual entitlement, the attorney must refund the amount of the smaller fee to the claimant.'" Tharp v. Comm'r of S.S., 2011 WL 3438431, at *8 (S.D. Ohio Aug. 5, 2011) (quoting Jankovich v. Bowen, 868 F.2d 867, 870 (6th Cir. 1989).
Accordingly, it is ORDERED that Rose's Petition for Attorney Fees under the Equal Access to Justice Act (ECF No. 26) is GRANTED. Rose is awarded attorney's fees in the amount of $8,266.88.
It is further ORDERED that Rose's Unopposed Petition for Attorney Fees Pursuant to § 406(b) (ECF No. 30) is GRANTED. Rose is awarded attorney's fees in the amount of $10,363.73.
s/Thomas L. Ludington
THOMAS L. LUDINGTON
United States District Judge
Dated: September 9, 2014
PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing order was served upon each attorney or party of record herein by electronic means or first class U.S. mail on September 9, 2014.
s/Tracy A. Jacobs
TRACY A. JACOBS