Free Memorandum and Order - District Court of Delaware - Delaware

Case 1:05—cv—00863-JJF Document 31 Filed 08/25/2008 Page 1 of 2
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
DALE S. FURNISS, :
Plaintiff, ;
v. Z Civil Action No. 05-863-JJF
MICHAEL J. ASTRUE, Z
Commissioner of Social :
Security, :
Defendant. ;
MEMORANDUM ORDER
Plaintiff has filed a Motion For Attorney’s Fees Pursuant To
The Social Security Act, 42 U.S.C. § 406(b) (D.I. 29) requesting
fees in the amount of $8,717.75. Defendant has filed a Response
(D.I. 30) indicating that he does not object to the amount
requested by Plaintiff’s counsel; however, Defendant contends
that the fees must be recharacterized for effectuation purposes
to include $5,000 in fees awarded to Plaintiff’s counsel under
the Equal Access to Justice Act (“EAJA"). Gisbrecht v. Barnhart,
535 U.S. 789 (2002). Thus, Defendant contends that Plaintiff’s
award of fees should amount to $13,717.75, with the $5,000 in
fees already paid to counsel under the EAJA, to be returned to
Plaintiff by Plaintiff’s counsel.
In Gisbrecht, the Supreme Court held that an attorney who
receives an award of fees under Section 406(b) and the EAJA must
refund to the claimant the lesser of the two awards. Id; at 796.
Accordingly, the Court will order Plaintiff’s counsel to be

Case 1 :05—cv—00863-JJF Document 31 Filed 08/25/2008 Page 2 of 2
awarded fees in the amount of $13,717.75 pursuant to 42 U.S.C. §
406(b), with the previous award of $5,000 pursuant to the EAJA
being returned to Plaintiff by Plaintiff’s counsel.
NOW THEREFORE, IT IS HEREBY ORDERED that:
1. Defendant shall pay to Plaintiff’s counsel, Anthony R.
Mignini, Esquire the sum of Thirteen Thousand Seven Hundred
Seventeen Dollars and Seventy—five Cents ($13,717.75), in
attorney’s fees being withheld from Plaintiff’s past—due benefits
for court related services.
2. Upon receipt of this sum, Mr. Mignini shall remit Five
Thousand Dollars ($5,000.00) directly to Plaintiff, representing
the sum already paid to Mr. Mignini on Plaintiff’s behalf
pursuant to the Equal Access To Justice Act, 28 U.S.C. § 2412.
Augustgé 2008
DATE TED TA S DISTRI JUDGE
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