United States District Court, D. Kansas
MEMORANDUM AND ORDER
KATHRYN H. VRATIL United States District Judge.
Lamar Guliford appealed the final decision of the
Commissioner of Social Security to deny disability benefits
under Title II of the Social Security Act
(“SSA”), 42 U.S.C. §§ 401 et
seq. On April 24, 2015, pursuant to the fourth sentence
of 24 U.S.C. § 405(g), the Court entered judgment
reversing the Commissioner's decision and remanding the
case for further proceedings. Judgment In A Civil
Case (Doc. #21). On June 18, 2015, pursuant to the Equal
Access to Justice Act (“EAJA”), 28 U.S.C. §
4212(d), the Court awarded plaintiff attorney's fees in
the amount of $5, 037.50. Order Granting Attorney's
Fees Under The Equal Access To Justice Act (EAJA) (Doc.
#23). On September 16, 2016, the Social Security
Administration notified plaintiff of a fully favorable
decision on remand. This matter comes before the Court on the
Motion For Attorney's Fees: Plaintiff's
Counsel's Fee Petition By “Section 206(B) Of The
Social Security Act, As Amended” Notwithstanding
Previous EAJA Fee Petition Intercepted By Kansas Department
Of Children And Families (Doc. #24) filed February 14,
noted, after the Court entered judgment reversing and
remanding the Commissioner's decision, it awarded
plaintiff attorney's fees under the EAJA in the amount of
$5, 037.50. Order Granting Attorney's Fees
Under The Equal Access To Justice Act (EAJA) (Doc. #23).
The Court stated that pursuant to Astrue v. Ratliff,
560 U.S. 586 (2010), the EAJA fee was “payable to
plaintiff as the litigant and may be subject to offset to
satisfy any pre-existing debt the litigant may owe to the
United States.” Order (Doc. #23). The Court
ordered defendant to make the check payable to plaintiff and
mail it to plaintiff's attorney. Id.
Department of Treasury intercepted the funds to pay a debt
which plaintiff owed Kansas Child Support Services. See
Motion For Attorney's Fees (Doc. #24) ¶¶
2, 6, attached exhibit at 18. Therefore, plaintiff's
counsel did not receive the EAJA fee.
remand, the Social Security Administration decided the case
in favor of plaintiff and awarded past-due benefits of $47,
456.40. See id., attached exhibit at 21,
Of that amount, the Social Security Administration withheld
$11, 864.10, or 25 per cent. See id. at 24. From the
withheld funds, the Social Security Administration authorized
payment of $6, 000.00 to plaintiff's counsel for
representation before the Commissioner under 42 U.S.C. §
406(a). See id. at 23-24. Regarding the
remaining funds, i.e. $5, 864.00,  the Social
Security Administration informed plaintiff as follows:
We will still withhold the remainder, $5, 864.00, in case
your representative asks the Federal Court to approve a fee
for work that was done before the court. Section 206(B) of
the Social Security Act, as amended, governs fees for
services before the court.
Id. at 24.
handling social security cases in court may seek fees under
both the EAJA, 28 U.S.C. § 4212(d), and the SSA, 42
U.S.C. 206(b). See McGraw v. Barnhart, 450 F.3d
493, 497 (10th Cir. 2006). The statutes provide two different
types of fee awards which the court determines separately.
See id. (citing Frazier v. Apfel, 240 F.3d
1284, 1286 (10th Cir. 2001)). Under the EAJA, the Court may
award fees based on a statutory maximum hourly rate of
$125.00, unless it finds that the government's position
was “substantially justified” or that special
circumstances make an award unjust. 28 U.S.C. § 2412(d).
Fees awarded under the EAJA penalize the Commissioner for
assuming an unjustified legal position and are paid from
agency funds. See McGraw, 450 F.3d at 497 (citing
Orner v. Shalala, 30 F.3d 1307, 1309 (10th Cir.
1994)); 28 U.S.C. § 2412(d)(1)(A) (EAJA fee awarded to
prevailing party). As such, the government may offset fees
awarded under the EAJA to satisfy a claimant's
pre-existing debt to the government. See Astrue v.
Ratliff, 560 U.S. 586, 589 (2010).
the SSA, the Court awards fees out of past-due benefits to
satisfy a client's obligation to counsel. See
McGraw, 450 F.3d at 497; 42 U.S.C. 406(b)(1)(A). In
awarding fees under the SSA, the Court exercises discretion.
Gordon v. Astrue, 361 Fed. App'x 933, 935 (10th
Cir. 2010). The Court determines SSA fees based on
reasonableness, with a statutory maximum of 25 per cent of
past-due benefits. See id. The Court may determine a
reasonable fee based on a lodestar calculation or a contingency
fee agreement between the attorney and client. See
Gisbrecht v. Barnhart, 535 U.S. 789, 799-800
(2002). SSA fees are paid directly to counsel.
See McGraw, 450 F.3d at 497; 42 U.S.C. §
406(b)(1) (SSA fee paid out of past-due benefits). If counsel
receives fees under both the EAJA and the SSA, counsel must
refund the smaller amount to plaintiff. See McGraw,
450 F.3d at 497-98 (citing Gisbrecht, 535 U.S. at
796; Weakley v. Bowen, 803 F.2d 575, 580 (10th Cir.
the SSA, 42 U.S.C. § 206(b), counsel asks the Court to
authorize attorney's fees of $5, 037.50, i.e.
the same amount which it previously awarded for fees under
the EAJA. As noted, the Department of Treasury
intercepted the EAJA fee award to pay plaintiff's
pre-existing debt to Kansas Child Support Services. Defendant
does not oppose the motion, but notes that the Court has an
independent obligation to determine that the fee is
reasonable. See Defendant's Response To
Plaintiff's Motion For Fees Under 42 U.S.C. §
406(b) (Doc. #25) filed February 21, 2017.
asserts that he spent 40.3 hours working on plaintiff's
case before the Court. See Motion For Attorney's
Fees (Doc. #24) at 1-3, exhibit at 5. Counsel asks the
Court to determine a reasonable fee based on a lodestar
calculation of $125.00 an hour, i.e. the maximum
statutory rate allowed under the EAJA. Under the
circumstances, the Court finds that the time ...