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Pauline Bordes v. Michael J. Astrue


May 4, 2011


The opinion of the court was delivered by: Hon. Dennis M. Cavanaugh




Before the Court is an application for attorney's fees under 42 U.S.C. § 406(b) for services performed in Plaintiff's Social Security proceedings to recover benefits. No oral arguments were heard pursuant to Federal Rule of Civil Procedure 78. For the reasons stated below, counsel's application for fees is denied.


Plaintiff prevailed in her claims for disability benefits when this Court reversed the Administrative Law Judge's (ALJ) denial of Plaintiff's claim, and the Third Circuit then remanded the case to the ALJ for further proceedings, No. 06-2917, (3d Cir. May 18, 2007). Plaintiff received a Notice of Award from the Social Security Administration on March 7, 2010.

Plaintiff's counsel then filed for recovery of attorney's fees in this Court on March 23, 2010.

Defendant objected to the award of fees pursuant to § 406(b) because Plaintiff's counsel failed to apply for recovery under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412, as required by this Court, and now is time-barred from submitting such an application.*fn2 In reply, Plaintiff's counsel contended that it was unnecessary to apply for fees under the EAJA because the government's position in the Social Security proceedings was "substantially justified," counsel was thereby ineligible to recover under the statute.


Courts have indicated a strong preference for awarding attorney's fees pursuant to the EAJA, which are recovered from the government, rather than under § 406(b), which deducts the fees from the claimant's benefits. See Gregory v. Bowen, No. 88-1208, 1989 WL 32142 at *2 (D.N.J. Mar. 29, 1989). It is not sufficient, therefore, to merely allege that the government's position was "substantially justified" in seeking an excuse from filing an EAJA application. Instead, in this district it is required that:

If counsel chooses to proceed under § 406 alone, counsel shall give notice to the client (i) advising the client of his or her right to object either in person or by letter to the amount of the fee requested; and (ii) advising the client that counsel has chosen to make application under § 406(b) rather than the EAJA and explaining the reasons for that decision. Such notice shall be filed with the Clerk.

Salaberio v. Sec'y of Health & Human Servs., No. 84-1618, 1988 WL 52235, at *1 (D.N.J. Apr. 18, 1988) (quoting In Re Standing Order in Social Security Cases, Misc. 85-465 (D.N.J. Dec. 27, 1985)); Adkins v. Bowen, No. 85-1241, 1987 WL 27915, at *1 (D.N.J. Dec. 14, 1987). A client's consent, on its own, is not sufficient to meet these enhanced notice requirements. See Salaberio, 1988 WL 52235, at *2 ("[T]he enhanced requirements that accompany a fee application under § 406 must be complied with even when the client has consented."). Furthermore, the requirements must be satisfied "in 'all cases . . . in which an application for attorney's fees may be made.' . . . if counsel believes such fees to be unavailable, he may proceed under section 406 alone, 'provided' that he 'shall give notice to the client.'" Gregory, 1989 WL 32142, at *4 (quoting Standing Order, Misc. No. 85-465).

While counsel may have been correct in his reasoning to not apply for fees under the EAJA, since he believed that the government's position was substantially justified and that he therefore would be ineligible to recover under the EAJA, counsel did not indicate that he gave the requisite enhanced notification to Plaintiff detailing this reasoning, nor did he file any such notice with the Clerk. That notification was required regardless of Counsel's position on whether EAJA fees were actually recoverable. Counsel's failure to make the required disclosures to his client prevents him from now being able to recover fees under § 406, and so the application for attorney's fees must be denied.*fn3


Plaintiff's counsel did not demonstrate that he met this Court's enhanced requirements by advising Plaintiff that he was pursuing fees only under § 406 and not under the EAJA, providing her with the rationale for that decision, and notifying her of her right to object; nor did he file such notice with the Clerk. Accordingly, counsel's application to recover attorney's fees pursuant to § 406 is denied.

Dennis M. Cavanaugh, U.S.D.J.

Orig.: Clerk cc: All Counsel of Record 32142, at *4.

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