406's provisions do not preclude an award of counsel fees under the EAJA. WATKINS v. HARRIS, 566 F. Supp. 493 (E.D. Pa. 1983); SMITH v. SECRETARY OF HEALTH AND HUMAN SERVICES, No. 83-0182, slip op. at 3 (M.D. Pa. April 17, 1984).
Having reviewed the two pertinent statutory authorizations enabling the court to grant attorney fees and expenses, we turn to plaintiff's application for attorney's fees and expenses. Plaintiff filed his application pursuant to the EAJA, 28 U.S.C. § 2412, seeking to recover $3,172.50 in attorney fees for 42.3 hours
of services performed before the Secretary and this court.
Moreover, plaintiff's counsel asks that the balance, if any, of his fee application that is not granted by the court be approved by us to be paid from the twenty-five percent of the benefits withheld by the Secretary.
Plaintiff's fee motion is clumsily framed, which makes it difficult for us to review. Although plaintiff does not articulate his position, it is our opinion that plaintiff seeks to pay his counsel first from fees paid by the Government under the EAJA. The balance that is not awarded under the EAJA, if any, plaintiff then seeks to have paid from the past-due benefits withheld by the Secretary pursuant to 42 U.S.C. § 406(b). In response, the Secretary claims that plaintiff is not a prevailing party and that fees incurred for services performed before the agency are not compensable under the EAJA. The Secretary has failed to offer any comments regarding plaintiff's alternate request for fees paid from the past-due benefits fund.
Turning first to the claim for attorney fees pursuant to the EAJA, we reiterate that fees cannot be awarded under the EAJA for services performed before the Secretary. MILLER v. UNITED STATES OF AMERICA, 753 F.2d at 275 n.3 (3d Cir. 1985). From counsel's statement of hours expended, we find that counsel expended 16.9 hours in services before us. The Secretary has not contested the reasonableness of these hours and we do not find the amount to be unreasonable.
As to the Secretary's claim that plaintiff has not prevailed, we find no merit to this defense. Our prior order clearly directed that plaintiff was entitled to disability benefits from April 14, 1982. The only aspect of the case that was remanded to the Secretary was to determine if the disability had existed even earlier. Under the applicable standards, plaintiff was the prevailing party. BROWN v. SECRETARY OF HEALTH & HUMAN SERVICES OF THE UNITED STATES, 747 F.2d 878 (3d Cir. 1984).
We observe that the Secretary has not argued that its position was substantially justified, which is its burden of proof. DOUGHERTY v. LEHMAN, 711 F.2d 555 (3d Cir. 1983). Additionally, as our prior memorandum indicates, the Secretary would be unable to justify its position in light of the overwhelming evidence in plaintiff's favor.
Finally, plaintiff's counsel seeks to be reimbursed at a rate of $75.00 per hour. Again, the Secretary has not contested the reasonableness of this hourly rate. In light of the experience of plaintiff's counsel and of the affidavits presented by counsel in support of his requested fee, we find the suggested hourly rate to be reasonable. See CUNNINGHAM v. CITY OF McKEESPORT, 753 F.2d 262 (3d Cir. 1985) (uncontradicted hourly rate that is within normal billing rate should not be decreased).
Thus, pursuant to the EAJA, we find that plaintiff's counsel is entitled to be reimbursed for the 16.9 hours he expended before this court at a rate of $75.00 per hour for a total of $1,267.50.
We now address plaintiff's request for attorney fees pursuant to 42 U.S.C. § 406(b). As noted above, we believe the better view of the law to be that we are able to award attorney fees for services performed before the Secretary, in addition to those services performed before the court, in accordance with § 406. See WEBB, 472 F.2d at 536; KEMP, 587 F. Supp. at 780. Nevertheless, in appropriate circumstances, we will retain the discretion to refer the issue of attorney fees to the Secretary for her consideration because she may be better suited to determine the quality of representation and the reasonableness of a fee request.
In the present case, we believe we are capable to make a fee award for the services counsel performed both before the Secretary and us. However, because counsel has already been compensated for his services before us under the EAJA, we do not find a further award for district court services to be justified.
As to counsel's activities before the Secretary, counsel seeks reimbursement for 25.4 hours, at $75.00 per hour, in addition to $250.00 for an expert fee. First, the plain wording of the statute permits the entry of a judgment for a reasonable fee for representation. We see no provision for an additional award of costs or expenses and, thus, we will not award them.
From our review of counsel's time claims, we find the hours expended in preparation and activity before the agency to be reasonable. Having already found counsel's hourly rate to be reasonable, we will award a fee of $1,905.00 (25.4 hours x $75.00 per hour). This award is conditional upon its not exceeding twenty-five percent of plaintiff's past-due benefits.
An appropriate order will be entered.