Roberts v. Colvin

Filing 31

ORDER GRANTING 29 Motion for Attorney Fees. It is ORDERED that Mr. Lassiter be awarded a reasonable fee under § 406(b) in the sum of $3,616.00, as further set out. Signed by Magistrate Judge Bert W. Milling, Jr on 6/9/2017. (clr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
MICHAEL A. ROBERTS,
Plaintiff,
v.
NANCY C. BERRYHILL,
Acting Commissioner of Social
Security,
Defendant.

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CIVIL ACTION 15-0461-M

ORDER
This action is before the Court on the Petition for Authorization
of Attorney Fees pursuant to 42 U.S.C. § 406(b) filed by Byron A.
Lassiter, counsel for Plaintiff Michael A. Roberts (“Plaintiff”)
(Doc. 29).

The Defendant Commissioner of Social Security (“the

Commissioner”) has filed a response to the motion (Doc. 30).

Upon

consideration, the Court finds that the § 406(b) motion is due to
be GRANTED.1
I.

Background
On September 22, 2015, Plaintiff, at all times represented by

Mr. Lassiter, commenced this action for judicial review of an
unfavorable final decision of the Commissioner under 42 U.S.C. §§
405(g) and 1383(c)(3).

(Doc. 1). In accordance with the Court’s

scheduling order (Doc. 5), the Commissioner filed her answer (Doc.
With the consent of the parties, the Court designated the undersigned Magistrate Judge to
conduct all proceedings in this civil action in accordance with 28 U.S.C. § 636(c), Federal
Rule of Civil Procedure 73, and S.D. Ala. GenLR 73. (See Docs. 19, 21).

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12) to the complaint and the record of the administrative proceedings
(Doc. 13), and the Plaintiff filed her brief identifying errors in
the Commissioner’s final decision (Doc. 15).

In response to the

Plaintiff’s brief, the Commissioner filed her brief in support of
the Final Decision (Doc. 16).

Oral argument was waived (Docs. 18,

20) and on March 11, 2016, the undersigned entered a Memorandum Opinion
and Order reversing the Commissioner’s final decision, remanding this
action to the Social Security Administration for further
administrative proceedings (Doc. 22) and entering Judgment for the
Plaintiff (Doc. 23).
Plaintiff subsequently filed a motion for attorney’s fees under
the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d)2 (Doc.
24), for time spent before this Court, which was granted on June 6,
2016, awarding the Plaintiff $3,163.44 in attorney’s fees (Docs. 28,
29).
Following remand to the Social Security Administration (SSA),
an Administrative Law Judge (“ALJ”) issued a favorable decision for

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[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).

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the Plaintiff on October 28, 2016 (Doc. 29, Paragraph 5.).

A Notice

of Award of past-due benefits was issued February 12, 2017, which
also advised that $9,616.00, representing 25% of past due benefits,
was being withheld in order to pay an approved lawyer’s fee (Doc.
29-2).

Mr. Lassiter has already been paid $6,000 for his services

before the administration (Doc. 29-3) and he filed the present § 406(b)
motion on June 2, 2017, requesting that the Court award him $3,616.00,
the balance of the withheld fee (Doc. 29).
II.

Analysis
[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).3

“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).”).

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“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).
a.

Timeliness
“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.”
The Notice of Award sent to Plaintiff is dated February 12, 2017 (Doc.
29-2) but it is unclear when Plaintiff received it.

The Notice stated

that Plaintiff had 60 days from the day after the notice was received
to ask for an appeal and 5 additional days was allowed for receipt
of the notice.

In ordering remand, the Court did not set the time

to file a § 406(b) motion (Doc. 22).

Mr. Lasiter’s 406(b) motion was

filed June 7, 2017, less than four months after the date of the Notice
of Award.

Considering the history of this action and the successful

result obtained by Mr. Lassiter for his client, the Motion is DEEMED
timely filed.
b.

Reasonableness
In Gisbrecht v.
U.S.C. § 406(b)
court's role in
favorable claim

Barnhart, the Supreme Court considered 42
and clarified its impact on the district
awarding a reasonable fee following a
for Social Security benefits. See 535 U.S.
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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).
Section 406(b)(1)(A) “prohibits fee agreements from providing
for a fee ‘in excess of 25 percent of the total of the past-due benefits
to which the claimant is entitled.’ ”
§ 406(b)(1)(A)).

Id. at 1285 (quoting 42 U.S.C.

However “the agreement, not the statute, provides

the ‘primary means by which fees are set.’ ”

Id. (quoting Gisbrecht,

535 U.S. at 807).
In retaining Lassiter to represent him, the Plaintiff entered
into an “Attorney Fee Agreement” (Doc. 29-4), in which the Plaintiff
agreed to pay an attorney fee not to exceed 25% of the combined gross
retroactive benefits from the Social Security and Supplemental
Security Income resulting from a favorable award. The Court finds
no reason to believe that this fee agreement violates § 406(b)(1)(A).
However,
[Gisbrecht further] 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, Ҥ 406(b) calls
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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 1828.
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 Ҥ 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 v. Astrue, 359 F. App'x 968, 974-75 (11th Cir. 2010) (per
curiam) (unpublished) (footnote omitted).
As provided in the Plaintiff’s Notice of Award, the SSA
calculated $9,616.00 as representing 25% of the Plaintiff’s recovered
benefits.

Neither Mr. Lassiter nor the Commissioner disputes that

figure here.

Mr. Lassiter has already received from the SSA a

$6,000.00 fee 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
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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.”).4
Moreover, “an 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.

Mr. Lassiter is holding for Plaintiff in the firm’s trust

account the sum of $2,055.48 (the EAJA fee awarded in the amount of
$3,163.44 minus $1,107.48 which applied to a U.S. Department of
Education debt) which sum will be paid to Plaintiff.

Thus, the Court’s

duty now is to determine whether it is reasonable for him to receive
$3,616.00 (i.e., 9,616.00 - $6,000.00) for his services to the
Plaintiff in this Court under their contingency fee agreement.
Considering the amount of time Mr. Lassiter devoted to this case

Cf. Thomas, 359 F. App'x at 971 (“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 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).”).

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(16.8 hours) and the services performed (Doc. 29-1), 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.

Mr.

Lassiter obtained excellent results for his client through his
efforts, and a review of the docket for this action does not indicate
that he has been responsible for any significant 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 rule on this action
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 Mr. Lassiter to be awarded a fee of
$3,616.00 under § 406(b).
III. Conclusion
In accordance with the foregoing analysis, it is ORDERED that
Mr. Lassiter’s motion for fees under 42 U.S.C. § 406(b) (Doc. 29)
is GRANTED and that he is awarded a reasonable fee under § 406(b)
in the sum of $3,616.00.
DONE this 9th day of June, 2017.
s/BERT W. MILLING, JR.
UNITED STATES MAGISTRATE JUDGE

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