The opinion of the court was delivered by: Aspen, District Judge:
MEMORANDUM OPINION AND ORDER
The federal courts of appeals have split over the ability of a district
court to award attorneys' fees to a prevailing party for counsel time
spent before an administrative agency in pursuit of social security
benefits. The split results from differing interpretations of the
statutory authority for fee awards under the Social Security Act.
42 U.S.C. § 406(a) authorizes the Secretary to award attorneys' fees
for services performed in connection with claims before the Secretary;
42 U.S.C. § 406(b)(1) authorizes a court which has rendered a
judgment favorable to a claimant to award attorneys' fees as part of the
judgment rendered by the court.
The majority of courts of appeals interpret this statutory scheme as
permitting each forum to assess fees for work performed before it, but not
permitting either forum to assess fees for work performed in the other.
See, e.g., Whitt v. Califano, 601 F.2d 160, 161-62 (4th Cir. 1979),
MacDonald v. Weinberger, 512 F.2d 144, 146 (9th Cir. 1975), Fenix v.
Finch, 436 F.2d 831, 838 (8th Cir. 1971), Gardner v. Mitchell,
391 F.2d 582, 583 (5th Cir. 1968), Gardner v. Menendez, 373 F.2d 488 (1st
Cir. 1967). Under this interpretation, a district court could not assess
fees for work performed before the Secretary.
The Sixth Circuit construes the statutory scheme differently. It
concludes that 42 U.S.C. § 406(a) and § 406(b)(1) should be read
together as authorizing the forum which ultimately upholds the award of
social security benefits to determine and award attorney fees for all
work performed in connection with the claim. See, Webb v. Richardson,
472 F.2d 529 (6th Cir. 1972), see also, Lavender v. Califano, 683 F.2d 133
(6th Cir. 1982); Byrd v. Harris, 509 F. Supp. 1222 (E.D.Tenn. 1981).
Under this interpretation, if a district court were the forum which
ultimately upheld the award of benefits, it could award attorney fees for
services performed in front of the Secretary as well as those in front of
We have found no case in which the Seventh Circuit was asked to
determine whether a federal court can award attorney fees for work in
front of the Secretary under this statutory scheme. Ruzicka urges us to
adopt the Sixth Circuit's interpretation of the statute, while the
Secretary asserts the majority position is a better reading of the law.
We would agree with the Secretary that the plain language of the statute
is most clearly read to authorize each forum to award fees only for that
work performed in front of it.
Because this Court did not make the benefit award, it would be
inappropriate under either construction of the statute for us to award
attorney fees for work in front of the Secretary. Even if this Court
cannot make an original award of fees, however, we must decide whether it
is appropriate for a federal court to review the Secretary's award of
fees. Once again, not even the district courts of the Sixth Circuit,
whose interpretation Ruzicka prefers, would approve such a course. Byrd
v. Harris, 509 F. Supp. 1222, 1224 (E.D.Tenn. 1981).*fn3 It is also the
position of the majority of the other circuits that the amount of
attorneys' fees awarded by the Secretary under § 406 is a matter of
discretion, not subject to judicial review. See, e.g, Copaken v.
Califano, 590 F.2d 729, 731 (8th Cir. 1979); Schneider v. Richardson,
441 F.2d 1320, 1321 (6th Cir.), cert. denied, 404 U.S. 872, 92 S.Ct.
101, 30 L.Ed.2d 117 (1971); Chernock v. Gardner, 360 F.2d 257 (3rd Cir.
1966); see also Muenich v. United States, 410 F. Supp. 944, 947
We therefore decline to review the Secretary's award of $1700 in fees
for work in front of that forum. However, under the clear language of
42 U.S.C. § 406(b)(1), this Court has the discretion to award
attorney fees for the services performed before it. In this regard, the
Secretary has suggested in a letter to Ruzicka's counsel that $2500 is an
appropriate award for the services before this Court.*fn4 Counsel for
Ruzicka has stated that over 200 hours was expended on this matter. In
view of the prevailing legal fees for this type of work, we find $2500 ...