November 14, 2013
KARLA JO CUVELIER, 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 Attorney's Petition For Attorney Fees Under 42 U.S.C., Section § 406(b)(1)" (Docket No. 23), requesting attorney fees in the amount of $14, 597.15. The Defendant has filed, "Defendant's Response To Plaintiff's Motion For Attorney Fees Pursuant To The Social Security Act" (Docket No. 26) stating "the maximum amount that the Court should allow for attorney fees under section 406(b) is $14, 042.75."
This Court previously Ordered EAJA fees pursuant to 28 U.S.C. § 2412(d), payable to plaintiff in accordance with the agreed upon EAJA amount of $5, 550.00, 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. 21).
The application now before the Court is filed pursuant to 42 U.S.C. § 406(b) and states: (1) Plaintiff received an award letter of total benefits to be paid in the amount of $58, 388.60, of which $14, 042.75 was withheld for attorney fees; (2) Counsel will reimburse the Plaintiff in the amount of $5, 550.00 representing the Equal Access to Justice Act judgment fee.
Defendant's response appropriately states:
Additionally, as plaintiff's counsel recognizes, he previously applied for and was awarded fees under the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412, in the amount of $5, 500.00. See Doc. 23-1 at 1. As plaintiff's counsel further recognizes, Congress has precluded double-dipping, i.e., receipt of attorney fees for the same services under the EAJA and the Social Security Act, and smaller of the fees for the same work under 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).
IT IS THEREFORE HEREBY ORDERED that plaintiff's motion for fees (Docket No. 23) is granted in part. Plaintiff is awarded attorney fees pursuant to 42 U.S.C. §406(b) in the adjusted, agreed upon amount of $14, 042.75. As discussed above, Plaintiff's counsel shall refund to the plaintiff the previously awarded (smaller) EAJA fee amount of $5, 550.00.
IT IS SO ORDERED.