Opinion
18-CV-670-JPS
01-27-2022
KENNETH WASHINGTON, Plaintiff, v. KILOLO KIJAKAZI, Acting Commissioner of Social Security, Defendant.
ORDER
J.P. Stadtmueller, U.S. District Judge
On November 20, 2018, the Court remanded this case to the Commissioner of Social Security pursuant to the parties' stipulation. (Docket #15, #16, #17). On December 19, 2018, Plaintiff filed a motion for an award of attorney's fees and costs pursuant to the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412, (Docket #18), which was followed by a stipulation of non-objection to the petition for fees under the EAJA, (Docket #24), which the Court adopted, (Docket #25).
On June 6, 2020, Plaintiff filed a motion for attorney's fees pursuant to 42 U.S.C. § 406(b)(1), which allows a successful claimant who was represented by counsel to receive “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.” (Docket #26). Plaintiff sought a fee of $13,201.87. (Id.; Docket #27 at 1). The Government did not oppose this motion. (Docket #28).
On September 2, 2021, Plaintiff filed an amended motion for attorney's fees, this time seeking $8,030.00, which accounted for 25 percent of Plaintiff's total past-due benefits, (a total of $13,201.87), and 25 percent of those benefits awarded his daughter (a total of $1,186.25) minus $6,358.12, which was sought administratively by way of a petition to the Administrative Law Judge (the “ALJ”). (Docket #29, #30 at 2). The Government sought an extension of time to file a response and noted that it had made Plaintiff aware of a problem with the amended motion- specifically, there was no substantiation that Plaintiff's daughter had been awarded past-due benefits. (Docket #32). On October 2, 2021, Plaintiff filed a second amended motion for attorney's fees, again seeking $8030.00 broken down as 25 percent of Plaintiff's total past-due benefits, (a total of $13,201.87) minus $5,171.87, which it sought from the ALJ. (Docket #34 at 2). The Government noted that this amended petition contained a different amount of fees sought from the ALJ, and, upon contacting Plaintiff's counsel, was informed that counsel had yet to petition for administrative funds but would seek $5,171.87. (Docket #35 at 1-2).
Relying on Plaintiff's counsel's representations, the Commissioner did not oppose the award of $8030.00. Having considered the parties' briefing on the issue and in light of the non-opposition, the Court will grant the most recent motion, and deny the earlier motions as moot.
Accordingly, IT IS ORDERED that Plaintiff's amended motion for attorney's fees pursuant to 42 U.S.C. § 406(b)(1) (Docket #33) be and the same is hereby GRANTED;
IT IS FURTHER ORDERED that Plaintiff's earlier motions for attorney's fees (Docket #26, #29) be and the same are hereby DENIED as moot; and
IT IS FURTHER ORDERED that the Commissioner shall pay $8030.00 from the withheld funds to Plaintiff's counsel, Dana W. Duncan. Upon receipt of the money, Attorney Dana W. Duncan must refund the $4,100.30 that was awarded under the EAJA directly to Plaintiff.