Napier v. Colvin
ORDER granting 36 Motion for Attorney Fees in the sum of $8,988.25; upon receipt of the fees, Attorney Byron Lassiter is ORDERED to refund plaintiff the previously awarded EAJA fees in the amount of $5,022.81. Signed by Magistrate Judge Katherine P. Nelson on 11/18/2015. (srr)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
CAROLYN W. COLVIN,
Acting Commissioner of Social Security, )
Civil Action No. 13-00355-N
This action is before the Court on the petition for attorney’s fees under 42
U.S.C. § 406(b) (Doc. 36) filed by Byron A. Lassiter, Esq. (“Counsel”), counsel for the
Plaintiff claimant, in which Counsel requests “$8,988.25 as an attorney’s fee for
legal services rendered to the Plaintiff.”1 The Defendant Commissioner of Social
Security (“the Commissioner”) has timely responded, stating no opposition. See Doc.
38. Upon consideration, the Court finds that the petition is due to be GRANTED as
set forth herein.
On July 11, 2013, the Plaintiff, represented by Counsel, instituted this action
by filing a complaint seeking judicial review of an unfavorable decision of the
Commissioner under 42 U.S.C. § 405(g). Doc. 1. The Commissioner answered and
By consent of the parties (see Doc. 26), the Court has designated the undersigned United States
Magistrate Judge to conduct all proceedings and order the entry of judgment in this civil action
under 28 U.S.C. § 636(c) and Federal Rule of Civil Procedure 73. See Doc. 27.
the assignments of error were briefed on both sides. Docs. 18, 21, 22. On March 17,
2014, the Court entered Judgment remanding the Commissioner’s decision
pursuant to sentence four of 42 U.S.C. § 405(g). Doc. 30. The Plaintiff filed a motion
for attorney’s fees under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. §
2412(d)2 (Doc. 25), on June 13, 2014, which the Court granted on July 1, 2014,
awarding the Plaintiff $5,022.81 in attorney’s fees under EAJA. See Doc. 35.
Following remand to the Social Security Administration (SSA), the Commissioner
ultimately issued a favorable decision for the Plaintiff on July 16, 2015, awarding
her various past-due benefits. Doc. 36-2 at 1; Doc. 36 at 4.
In a notice dated August 25, 2015, the SSA informed Plaintiff that it has
“withheld the amount of $8,988.25,” representing the balance of 25 percent of the
past-due benefits for [the Plaintiff], in anticipation of direct payment of an
authorized attorney’s fee, minus $6,000.00 representing an administrative attorney
fee. Doc. 36-2 at 4; Doc. 36 at 4. Counsel filed the present petition on October 13,
2015, requesting that the Court issue an order awarding him the $8,988.25 under §
406(b).3 Doc. 36 at 5.
[S]uccessful Social Security benefits claimants may request a fee award under the EAJA.
Under the EAJA, a party that prevails against the United States in court may be awarded
fees payable by the United States if the government's position in the litigation was not
“substantially justified.”28 U.S.C. § 2412(d)(1)(A). EAJA fees are awarded to the prevailing
party in addition to and separate from any fees awarded under 42 U.S.C. § 406(b). See
Gisbrecht, 535 U.S. at 796, 122 S. Ct. at 1822; Reeves v. Astrue, 526 F.3d 732, 736 (11th Cir.
2008). Unlike § 406(b) fees, which are taken from the claimant's recovery, EAJA fees are paid
from agency funds.
Jackson v. Comm'r of Soc. Sec., 601 F.3d 1268, 1271 (11th Cir. 2010).
Cf. Thomas v. Astrue, 359 F. App'x 968, 971 (11th Cir. 2010) (per curiam) (unpublished) (“The
Commissioner ultimately awarded Thomas $63,703.36 in total past-due social security benefits and
set aside 25 percent of that award ($15,925.84) for attorney's fees. The attorney who represented
[U]nder 42 U.S.C. § 406(b), a court entering judgment in favor of a Social
Security benefits claimant who was represented by an attorney “may
determine and allow as part of its judgment a reasonable fee for such
representation, not in excess of 25 percent of the total of the past-due
benefits to which the claimant is entitled by reason of such judgment.”42
U.S.C. § 406(b)(1)(A). Assuming that the requested fee is within the 25
percent limit, the court must then determine whether “the fee sought is
reasonable for the services rendered.”Gisbrecht v. Barnhart, 535 U.S. 789,
807, 122 S. Ct. 1817, 1828, 152 L. Ed. 2d 996 (2002). For example, courts
may reduce the requested fee if the representation has been substandard,
if the attorney has been responsible for delay, or if the benefits are large
in comparison to the amount of time the attorney spent on the case. Id. at
808, 122 S. Ct. at 1828. A § 406(b) fee is paid by the claimant out of the
past-due benefits awarded. 42 U.S.C. § 406(b)(1)(A).
Jackson v. Comm'r of Soc. Sec., 601 F.3d 1268, 1271 (11th Cir. 2010).4 “42 U.S.C. §
406(b) authorizes an award of attorney's fees where[, as here,] the district court
remands the case to the Commissioner of Social Security for further proceedings,
and the Commissioner on remand awards the claimant past-due benefits.” Bergen v.
Comm'r of Soc. Sec., 454 F.3d 1273, 1277 (11th Cir. 2006) (per curiam).
The Eleventh Circuit has held that “Fed. R. Civ. P. 54(d)(2) applies to a §
406(b) attorney’s fee claim.” Id. Rule 54(d)(2)(B)(i) provides that, “[u]nless a statute
or a court order provides otherwise, [a] motion[ for attorney’s fees] must be filed no
later than 14 days after the entry of judgment.” Here, in ordering remand, the
Thomas during the administrative proceedings was awarded $5,300 in fees under § 406(a), leaving a
balance of $10,625.84 for attorney's fees available under § 406(b).”).
4 “Under 42 U.S.C. § 406(b)(2), it is a criminal offense for an attorney to collect fees in excess of those
allowed by the court.” Jackson, 601 F.3d at 1271. See also Gisbrecht, 535 U.S. at 795-96 (“The
prescriptions set out in §§ 406(a) and (b) establish the exclusive regime for obtaining fees for
successful representation of Social Security benefits claimants. Collecting or even demanding from
the client anything more than the authorized allocation of past-due benefits is a criminal offense. §§
406(a)(5), (b)(2) (1994 ed.); 20 CFR §§ 404.1740–1799 (2001).”).
Court did not specify a deadline within which the Plaintiff’s counsel could seek
attorney fees following an award of past due benefits by the Commissioner. The
Court is also unaware of any statute, standing order, or local rule that would
provide for a different time to file. Thus, Counsel’s § 406(b) petition is subject to
Rule 54(d)(2)’s 14-day deadline. The Eleventh Circuit, however, has not yet decided
when this 14-day period begins to run for § 406(b) petitions. See id. at 1277-78 (“To
determine whether the petitions were timely requires deciding when the 14 day
period for filing the petitions provided in the rules begins to run for a § 406(b)
petition. Because the Commissioner has not objected to the timeliness of the
attorney's fee petitions, we do not address this issue in this case and merely hold
that the petitions were timely.”).
On remand, the Commissioner issued a favorable decision for the Plaintiff on
July 16, 2015, with past-due benefits awarded beginning from May 2010, and
notices issued on August 25, 2015.5 Counsel did not file the present petition until
October 13, 2015. If it were to consider only these circumstances, the Court doubts
that the petition would be considered timely under Rule 54(d)(2). See Wilson v.
Comm'r of Soc. Sec., No. 5:05-CV-434-OC-PRL, 2012 WL 4760913, at *1 (M.D. Fla.
Oct. 5, 2012) (“Courts have construed th[e Bergen] rule liberally, holding that the
fourteen day period begins to run after the plaintiff is served with the SSA's notice
of awarding benefits.”(citing cases)); id. at *1-2 (“On July 2, 2012, the Social
Security Administration (‘SSA’) issued a letter notifying Plaintiff's counsel, that it
The August 2015 notice expressly advises: “Section 206(B) of the Social Security Act [42 U.S.C. §
406(b)], as amended, governs fees for services before the court. If your lawyer wishes to receive a fee
for those services, he must send the petition for those fees to [this Court].” Doc. 36-2 at 4.
withheld $74,459.75 of the award for attorney's fees, which represents twenty-five
percent of Plaintiff's award. Plaintiff asserts, however, that this letter was not
received until July 23, 2012. Subsequently, on July 31, 2012, Plaintiff filed the
instant Motion seeking $50,000, in attorneys' fees, pursuant to the ‘Fee
Agreement—SSI and Social Security’ dated May 7, 2003 . . . Here, although the
notice from the SSA is dated July 2, 2012, the Court accepts Plaintiff's attorneys'
representations that (i) the letter was not received until July 23, 2012, and (ii) that
this is the first notice Plaintiff received from the SSA indicating the amount of fees
withheld. Thus, since Plaintiff filed this Motion on July 31, 2012, eight days after
counsel was notified of the amount of money withheld for fees, the Court finds
Plaintiff's Motion timely.” (docket citations omitted)).
Though the Commissioner has stated she “has no objection to the
petition”(Doc. 30 at 1), that in itself does not waive the issue of timeliness. “The
Supreme Court has noted that the Commissioner ‘has no direct financial stake’ in §
406(b) fee awards to a claimant's attorney; instead, the Commissioner ‘plays a part
in the fee determination resembling that of a trustee for the claimants.’ “Thomas v.
Astrue, 359 F. App'x 968, 972 n.4 (11th Cir. 2010) (per curiam) (unpublished).
The Eleventh Circuit has shown sympathy to an attorney who found himself
in a situation similar to Counsel’s. In vacating the district court’s dismissal of that
attorney’s § 406(b) fee petition as untimely under Rule 54(d)(2) and remanding with
instructions that the district court determine the fees owed, the Eleventh Circuit
We are very sympathetic with the attorney's plight under the unique
circumstances created by a remand judgment under sentence four of 42
U.S.C. § 405(g). Our understanding is the amount of fees owed under a
contingency arrangement is not established for months after remand,
until the Social Security Administration determines the amount of the
client's award. In Bergen v. Comm'r of Soc. Sec., 454 F.3d 1273 (11th Cir.
2006), we suggested the best practice for avoiding confusion about the
integration of Fed. R. Civ. P. 54(d)(2)(B) into the procedural framework of
a fee award under 42 U.S.C. § 406 is for a plaintiff to request and the
district court to include in the remand judgment a statement that
attorneys fees may be applied for within a specified time after the
determination of the plaintiff's past due benefits by the Commission. 454
F.3d at 1278 n.2. As we understand it, however, the best practice has not
been a universally-workable solution. Perhaps another vehicle for creating
some much needed certainty in this area of the law is for the district
courts to fashion a general order or a local rule permitting district-wide
application of a universal process for seeking fees under these unique
circumstance. It is our hope the district courts, in doing so, will keep in
mind Congress's intent behind § 406(b), to encourage attorneys to
represent Social Security claimants. See Bergen, 454 F.3d at 1276.
Blitch v. Astrue, 261 F. App'x 241, 242 n.1 (11th Cir. 2008) (per curiam)
Given that 1) the question of when Rule 54(d)(2)’s 14-day period begins to run
for § 406(b) petitions remains unsettled in this Circuit, (2) the Court did not specify
a deadline for such a petition in remanding the case, (3) this district does not have a
general order, local rule, or other set procedure regarding such petitions, (4) the fact
that the Plaintiff’s past-due benefits awards were not determined until months after
remand, (5) the Commissioner has voiced no opposition, and (6) the Plaintiff was
clearly put on notice by his retainer agreement with Counsel that he would have to
pay Counsel 25% of any awarded past-due benefits, see infra., the Court will deem
Brock’s present § 406(b) petition timely.
In Gisbrecht v. Barnhart, the Supreme Court considered 42 U.S.C. §
406(b) and clarified its impact on the district court's role in awarding a
reasonable fee following a favorable claim for Social Security benefits. See
535 U.S. 789, 807, 122 S. Ct. 1817, 1828, 152 L. Ed. 2d 996 (2002).
Although § 406(b)(1)(A) gives district courts the power to “determine and
allow as part of its judgment a reasonable fee” following a favorable claim
for Social Security benefits, 42 U.S.C. § 406(b)(1)(A), it does not empower
them to ignore the fee agreements entered into by parties when
determining what a reasonable fee would be, see Gisbrecht, 535 U.S. at
807, 122 S. Ct. at 1828 (concluding that “§ 406(b) does not displace
contingent-fee agreements as the primary means by which fees are set”).
Instead, courts must look to the agreement made by the parties and
independently review whether the resulting fee is reasonable under the
circumstances. Id. Accordingly, [a court] must look to the fee agreement
made by [a claimant] and his attorney.
Keller v. Comm'r of Soc. Sec., 759 F.3d 1282, 1284 (11th Cir. 2014).
In retaining Counsel to represent him, the Plaintiff entered into a Fee
Agreement-Title II and/or Title XVI (Doc. 36-3) (“the Contract”). The contract
provides, in relevant part, as follows:
It is understood and agreed that I will pay an attorney's fee that will be 25% of the
combined gross retroactive benefits from Social Security and Supplemental
Security Income (SSI) resulting from a favorable award of the Commissioner,
prior to any reduction under Section 1127(a) of the Act . . .
If the appeal of my claim results in a favorable decision of the type justifying an
award of attorney’s fees under the Equal Access To Justice Act (EAJA), my
attorney shall have the option and right to file, at the attorney’s discretion, a
motion under the Equal Access To Justice Act (EAJA) seeking additional
attorney's fees to be set by the Federal Court and paid by the federal government.
My attorney shall have the option to retain either the EAJA fee or a fee, if any
under 42 U.S.C. § 406(b), which ever amount shall be higher, and refund to me
the lower of the two amounts, if any.
Doc. 36-3 at 1. Because the Plaintiff had a favorable outcome on remand, Counsel is
entitled to “25% of the combined gross retroactive benefits from Social Security and
Supplemental Security Income (SSI) . . .” Id.
In Gisbrecht v. Barnhart, the Supreme Court
explained that even when a contingency agreement complies with the
statutory limit and caps the fee at 25 percent of the claimant's benefits
award, “§ 406(b) calls for court review of [contingency fee]
arrangements as an independent check, to assure that they yield
reasonable results in particular cases.”[535 U.S.] at 807, 122 S. Ct. at
Even when there is a valid contingency fee agreement, Gisbrecht sets
forth certain principles that a district court should apply to determine
if the attorney's fee to be awarded under § 406(b) is reasonable. See id.
at 808, 122 S. Ct. at 1828. Under Gisbrecht the attorney for the
successful social security benefits claimant must show that the fee
sought is reasonable for the services rendered. Id., 122 S. Ct. at 1828.
The district court may reduce the fee based on the character of the
representation and the results achieved; and if the recovered benefits
are large in comparison to the time the claimant's attorney invested in
the case, a downward adjustment may be in order. Id., 122 S. Ct. at
1828. The Gisbrecht Court held that “§ 406(b) does not displace
contingent-fee agreements within the statutory ceiling [of 25 percent of
the claimant's recovered benefits]; instead, § 406(b) instructs courts to
review for reasonableness fees yielded by those agreements.” Id. at
808–09, 122 S. Ct. at 1829.
Thomas, 359 F. App'x at 974-75 (footnote omitted).
Plaintiff was awarded $59,953.00 in retroactive benefits. Doc. 36 at 4. Thus,
Counsel’s total fees are capped, both statutorily and under the terms of his
contingency fee agreement with the Plaintiff, at $14,988.25 (i.e. 25% of $59,953.00),
$6,000.00 of which has already been awarded him by the SSA for his services in
representing the Plaintiff there. See 42 U.S.C. § 402(a)(1) (“Except as provided in
paragraph (2)(A), whenever the Commissioner of Social Security, in any claim
before the Commissioner for benefits under this subchapter, makes a determination
favorable to the claimant, the Commissioner shall, if the claimant was represented
by an attorney in connection with such claim, fix (in accordance with the
regulations prescribed pursuant to the preceding sentence) a reasonable fee to
compensate such attorney for the services performed by him in connection with such
claim.”). Thus, the Court’s duty now is to determine whether it is reasonable for
Counsel to also receive the remaining $8,988.25 for his services to the Plaintiff
under their contingency fee agreement.
Counsel’s sworn timesheet documenting the amount of time spent on
representing the Plaintiff (Doc. 36-2 at 1-3) indicates that he devoted 27.00 hours to
the endeavor. The Court finds that the benefits awarded to the Plaintiff are not so
“large in comparison to the amount of time counsel spent on the case” such that “a
downward adjustment is . . . in order.” Gisbrecht, 535 U.S. at 808. A full award of
$14,988.25 would result in an hourly rate of approximately $555. The undersigned
has previously allowed a § 406(b) award that “render[ed] an hourly rate of
approximately $1,536.81.” Ramsey v. Colvin, Civ. Act. No. 12-00383-N, 2014 WL
806419, at *2 n.5 (S.D. Ala. Feb. 28, 2014).
By all accounts, Counsel appears to have obtained excellent results for his
client through his efforts, and a review of the docket for this action does not indicate
that Brock has been responsible for any delay. For instance, his social security brief
was timely filed, he never requested a deadline extension, and he consented to the
undersigned’s jurisdiction, thus allowing the undersigned to order remand rather
than having to issue a recommendation to the district judge. Having considered the
guidance set forth in Gisbrecht, the undersigned finds that it is reasonable for Brock
to receive his full 25% contingency fee for his representation of the Plaintiff.
“[A]n attorney who receives fees under both the EAJA and 42 U.S.C. § 406(b)
must refund the smaller fee to his client . . . ” Jackson, 601 F.3d at 1274. “Although
a refund paid by the claimant's attorney directly to the claimant would comply with
the EAJA Savings Provision, . . . a refund is[ not] the only way to comply . . . [T]he
attorney may choose to effectuate the refund by deducting the amount of an earlier
EAJA award from his subsequent 42 U.S.C. § 406(b) fee request . . . ”Id. at 1274.
Counsel’s Petition states that the previously-awarded EAJA fees ($5,022.81) “are
being temporarily held in the firm’s trust account for distribution to the Plaintiff,
pursuant to 42 U.S.C. § 406(b)”, indicating that Counsel intends to refund these fees
to the Plaintiff. Doc. 36 at 5.
Accordingly, it is ORDERED that Counsel’s petition for attorney’s fees under
42 U.S.C. § 406(b) (Doc. 36) is GRANTED. It is hereby ORDERED, ADJUDGED,
and DECREED that Byron A. Lassiter be awarded attorney’s fees under § 406(b) in
the sum of $8,988.25.6 Upon receipt of these § 406(b) fees, Attorney Byron A.
Lassiter is ORDERED to refund to the Plaintiff the previously-awarded EAJA fees
DONE and ORDERED this the 18th day of November 2015.
/s/ Katherine P. Nelson
KATHERINE P. NELSON
UNITED STATES MAGISTRATE JUDGE
Judgment for attorney’s fees is not entered in a separate document, as allowed by FED. R. CIV. P.
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