The opinion of the court was delivered by: HERMAN
AND NOW, this 12th day of March, 1985, in accordance with the accompanying memorandum, IT IS HEREBY ORDERED that:
1. Plaintiff's motion for attorney fees under the EAJA, 28 U.S.C. § 2412, is granted in part. Plaintiff is awarded $1,267.50 in attorney fees.
2. Plaintiff's motion for attorney fees under 42 U.S.C. § 406(b) is granted in part. Plaintiff is awarded $1,905.00 in attorney fees, which are to be paid from plaintiff's past-due benefits, to the extent that this award does not exceed twenty-five percent (25%) of the total amount of plaintiff's past due benefits.
3. Plaintiff's request for $250.00 as expert fees is denied.
Before this court is a motion for attorney fees and costs by plaintiff and his counsel for the counsel's services in pursuing plaintiff's social security disability action. Because we believe that neither party has adequately addressed or briefed the statutory bases for plaintiff's motion, we will set forth the applicable legal standards and apply them to this action.
Two statutory methods, which are not mutually exclusive, exist by which the attorney of a successful social security disability claimant can obtain compensation. Under the first method, when a claimant receives a favorable determination, counsel may obtain a fee not in excess of twenty-five percent of the total past-due benefits. 42 U.S.C. § 406. Subsection (a) authorizes the Secretary to certify the twenty-five percent maximum of past due benefits as fees for the counsel who successfully represents the claimant before the agency. Similarly, subsection (b) authorizes the court to make such a fee award for the attorney who successfully represents the claimant before the court.
In applying subsections (a) and (b), a question that has divided the courts is whether a district court can include an award of services performed before the Secretary in the court's award of attorney fees. The Fourth and First Circuits have held that the Secretary alone is empowered to make fee awards for services performed before the agency. MORRIS v. SOCIAL SECURITY ADMINISTRATION, 689 F.2d 495 (4th Cir. 1982); GARDNER v. MENENDEZ, 373 F.2d 488 (1st Cir. 1967). The Sixth Circuit, however, has rejected this view. "The Sixth Circuit, in WEBB v. RICHARDSON, 472 F.2d 529, 536 (6th Cir. 1972) has held that 'the tribunal making [an attorney fees] award can consider all services performed by the attorney from the time the claim was filed with the Social Security Administration' until the claim is resolved and the award is made." KEMP v. SCHWEIKER, 587 F. Supp. 778, 780 (W.D. Pa. 1984). The United States District Court for the Western District of Pennsylvania has adopted the Sixth Circuit's construction as being easy to apply, promoting economy of effort, and carrying out Congress' intent to limit contingency fee awards. Id.1
We concur with the KEMP court in finding that we are empowered to award counsel fees for services performed before the agency, in addition to those services performed before the court, as long as the total fee does not exceed twenty-five percent of the past-due benefits. Nevertheless, we will award such fees only when it is our judgment that results in the payment of back benefits. If the claimant succeeds at the agency level, either on initial application or upon remand by the district court, the claimant's counsel should look to the agency first for his fee award for his services performed before the Secretary. See DAVIS v. SECRETARY OF HEALTH, EDUCATION & WELFARE, 320 F. Supp. 1293, 1296 (N.D. Miss. 1970) (district court may award fees for services performed before it in addition to fees for administrative representation but counsel should apply to the Secretary first).
B. Equal Access to Justice Act
The second statutory provision that justifies an award of attorney fees is the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412 (Supp. 1984).
Under the EAJA, a prevailing claimant may recover attorney fees from the Government if the Secretary's position was not substantially justified and no special circumstances make an award unjust. TRESSLER v. HECKLER, 748 F.2d 146, slip op. at 6-7 (3d Cir. 1984).
Section 406's provisions do not preclude an award of counsel fees under the EAJA. ...