- Court: 9th Circuit Court of Appeals Archives
- Area(s) of Law: Attorney Fees
- Date Filed: 11-05-2012
- Case #: 11-35332
- Judge(s)/Court Below: Opinion by Circuit Judge Ikuta; Circuit Judges Tashima and Tallman.
- Full Text Opinion
At the conclusion of Sherry Parish’s (“Parrish”) second appeal, the district court found the ALJ erred and remanded to the agency to calculate and award Parrish past-due Social Security benefits. Pursuant to the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412, the court granted Parrish $5000 in fee awards for the first appeal and $6,575 for the second appeal. Parrish’s attorney, Tim Wilborn (“Attorney”), the real party of interest here, filed for fees under the Social Security Act, 42 U.S.C. § 406(b), totaling $2,484.89 ($9,059.89 (25 percent of past-due benefits) minus the second EAJA award). The district court declined to award any further fees, citing Kopulos v. Barnhart, because the EAJA awards ($11,575) exceeded the § 460(b) awards ($9,059.89). Attorney appealed, arguing the fee awards were not for the “same work.” The Ninth Circuit explained that an attorney can recover fees in a Social Security case in two ways: (1) §406(b) provides the court may grant the attorney reasonable amounts (up to 25 percent of a past-due benefits award) for all work leading to the favorable result, including work on prior appeals; (2) EAJA requires that unless the government’s position was “substantially justified,” the government must pay the attorney of a prevailing party, fees based on time and hourly rate, and, if that award overlaps with a § 406(b) award for the “same work,” the attorney must refund the smaller of the two to the claimant. The Ninth Circuit held that because all of Attorney’s awards under EAJA and § 460(b) were for work on the same claim, the district court did not err by including the first EAJA award in offsetting Attorney’s § 460(b) award. AFFIRMED.