Rice v. Astrue, -- F.3d --, No. 09-10589 (5th Cir. June 22, 2010)

Patrick E. Higginbotham, Circuit Judge

The Fifth Circuit Court of Appeals held that the district court has no discretion to offset an EAJA award of attorney's fees with a future 42 U.S.C. Sec. 406 (a) award of attornye's fees by the Commissioner of Social Security. EAJA fees paid for work performed before federal courts and fees under 406(a) paid for work performed in an administrative proceedings are not fees for "the same work" and as such are not subject to offset. An attorney can receive both EAJA fees and fees under 406 (a). The court emphasized that an EAJA award offests an award of fees under 406(b), so that the amount of the total past-due benefits the claimant actually receives will be increased by the EAJA award up to the point the claimant receives 100% of the past-due benefits.

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