McEneany v. Commissioner of Social Security

Background

Counsel for Conor McEneany sought attorney’s fees under 42 U.S.C. § 406(b) for work performed in securing Supplemental Security Income benefits for McEneany. The matter was referred to Magistrate Judge Sarah L. Cave.

On November 17, 2023, Judge Cave issued a Report and Recommendation. It recommended that the attorney-fee motion be granted in part and denied in part, that counsel receive $35,400 in fees under § 406(b), and that counsel refund $4,091.68 in fees previously awarded under the Equal Access to Justice Act, a federal law that can authorize fee awards against the government.

Responses and moot request

The deadline for objections was extended to December 8, 2023. The Commissioner timely responded but did not object to the recommendation that counsel receive § 406(b) fees. Instead, the Commissioner asked for clarification about whether the $6,000 non-refundable retainer that McEneany had already paid for federal-court representation was included in the § 406(b) award or was additional to it.

Counsel responded that the $6,000 retainer had been refunded to McEneany after the Commissioner raised the issue. The court found that this refund made the Commissioner’s request for clarification moot.

Court’s ruling

Because no timely objection was made to Judge Cave’s recommendations, the court reviewed the record for clear error. Judge Schofield found no clear error and adopted the Report and Recommendation in full.

The court awarded McEneany’s counsel $35,400 in attorney’s fees under § 406(b), reflecting an approximate effective hourly rate of $1,500. The court also ordered counsel to refund $4,091.68 to McEneany within five business days of receiving the fee award and to file a docket declaration confirming the refund. The Clerk of Court was directed to close the motions at Docket Entries 19 and 20.