August 30, 2013
JOHN L. KNEPPER, Plaintiff,
COMMISSIONER OF SOCIAL SECURITY, Agent of Carolyn W. Colvin, Defendant.
DONALD E. O'BRIEN, Senior District Judge.
This matter is before the Court upon Plaintiff's "Motion For Attorney's Fees Pursuant To 42 U.S.C. §406(b)" (Docket No. 25), requesting attorney fees in the amount of $10, 817.75. The Defendant has filed, "Defendant's Response To Plaintiff's Motion For Attorney Fees Pursuant To The Social Security Act" (Docket No. 26) stating Defendant "does not object to the fee sought by plaintiff's attorney as unreasonable."
This Court previously Ordered EAJA fees payable to plaintiff in accordance with the agreed upon EAJA settlement amount of $4, 813.37, to be paid by the Social Security Administration, and reimbursement of the $350.00 filing fee, payable from the Judgment Fund administered by the United States Treasury. 28 U.S.C. § 2412(a). Docket No. (23).
The application now before the Court is filed pursuant to 42 U.S.C. §406(b). Plaintiff Knepper was awarded back benefits totaling $67, 217.00; from that award, $16, 814.75 (25%) was withheld for attorney fees. Mr. Green (co-counsel) is expected to receive $6, 000.00 for work performed before the Social Security Administration. Using the "hypothetical hourly rate, " fees total $10, 8173.75 ($439.75($10, 817.75/24.6 hours)).
Defendant's response appropriately states:
As plaintiff's counsel further recognizes, Congress has precluded double-dipping, that is, receipt of attorney fees for the same services under the EAJA and the Social Security Act, and the smaller of the fees for the same work under the EAJA and the Social Security Act must be refunded to the plaintiff.
Docket No. 26.
As mentioned, plaintiff recognizes that a return of the EAJA amount to the plaintiff is appropriate if the award is granted under §406(b):
Thomas A. Krause and Robert W. Green request payment of $10, 817.75 in attorney fees under 42 U.S.C. §406(b). Thomas A. Krause and Robert W. Green further request that any order reflect counsel's duty to refund the previously awarded EAJA fees to Plaintiff in the amount of $4, 813.37.
Docket No. 25.
IT IS THEREFORE HEREBY ORDERED that plaintiff's motion for fees (Docket No. 25) is granted. Plaintiff is awarded attorney fees pursuant to 42 U.S.C. §406(b) in the amount of $10, 817.75. Plaintiff's counsel shall refund to the plaintiff the previously awarded EAJA fee amount of $4, 813.37.
IT IS SO ORDERED.