Sample Brief-406(b) and the Evolving Law Regarding Offset of Agency Fees

Introduction

Plaintiff Albert Doe, through attorney David F. Traver, has moved the Court to allow him to fulfill his contract with attorney David F. Traver and pay his attorney fees pursuant to 42 U.S.C. §406(b).

Plaintiff retained attorney David F. Traver and entered into a contingent-fee agreement for 25 percent of the past-due benefits payable to the plaintiff and his family. A copy of the fee agreement dated March 23, 2000, is attached as Exhibit A.

On February 6, 2002, the Honorable Magistrate Judge Frank Roe issued a report and recommendation, recommending that the court reverse and remand the Commissioner’s decision pursuant to sentence four 42 U.S.C. §406(g). On March 15, 2002, the Court entered an order adopting the Magistrate’s recommendation agreeing with the government’s position that “there is little chance” that Plaintiff would be able to prove disability (Order, at 3, March 14, 2002). The Court denied Plaintiff’s motion for attorney’s fees pursuant to the EAJA, explaining that it was a “really close case” and unlikely that Doe’s case could be won (Opinion and Order, at 7, July 30, 2002).

Upon remand after a hearing, the Commissioner found Doe disabled in a hearing decision dated August 27, 2004, which triggered an award of past-due Social Security benefits. The Social Security Administration withheld 25 percent of Doe’s past-due benefits, but miscalculated the onset date of benefits. Upon appeal, and with the help of Senator Feingold (Exhibit B), the correct onset date was finally established, generating more past-due benefits for Doe. On November 10, 2006, the Commissioner sent counsel a copy of the May 28, 2006 award letter with the Commissioner’s final calculation of the total past-due benefits withheld (Exhibit C, at 1). The hours spent on this case are summarized in Exhibit D.

Plaintiff wishes to settle his accounts with his attorney by paying the remaining amount due under their contract. To accomplish this final step, Plaintiff respectfully requests the Court’s approval of the attorney’s fee under 42 U.S.C. §406(b).

Amount of the Attorney’s Fee

The applicable legal standards were recently set forth in a court of this circuit in Kopulos:

Attorney’s fees for representing individuals in Social Security cases are governed by 42 U.S.C. §406. Section 406(a) governs fees for representation in administrative proceedings; §406(b) controls fees for representation in federal district court. Gisbrecht v. Barnhart, 535...