Williams v. Saul

Filing 26

MEMORANDUM OPINION AND ORDER on Attorney Fees. The Motion for Allowance of Fees as part of the Judgment is GRANTED. Attorney Lassiter is allowed, as part of the judgment, fees in the amount of $8,091.15. Signed by Magistrate Judge Katherine P. Nelson on 3/31/2021. (tgw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
SHARON ROSE WILLIAMS,
Plaintiff,
v.
ANDREW M. SAUL,
Commissioner of Social Security,
Defendant.

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CIVIL ACTION NO. 1:19-00318-N

MEMORANDUM OPINION AND ORDER
This civil action brought under 42 U.S.C. § 405(g) is before the Court on the
motion for allowance of fees as part of the judgment under 42 U.S.C. § 406(b) (Doc.
23) filed by Byron A. Lassiter, Esq., counsel of record for Plaintiff Sharon Rose
Williams.1 The Defendant Commissioner of Social Security has filed a response
stating that he “does not oppose Plaintiff’s attorney’s petition for fees under 42
U.S.C. § 406(b) in the amount of $8,091.15.” (Doc. 25).2 Upon due consideration, the
Court finds that Lassiter’s motion is due to be GRANTED.3

A Social Security claimant’s attorney is the real party in interest to a § 406(b)
award. Gisbrecht v. Barnhart, 535 U.S. 789, 798 n.6, 122 S. Ct. 1817, 152 L. Ed. 2d
996 (2002).

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2 “A

§ 406(b) fee is paid by the claimant out of the past-due benefits awarded.”
Jackson v. Comm'r of Soc. Sec., 601 F.3d 1268, 1271 (11th Cir. 2010). “[T]he
Commissioner of Social Security … has no direct financial stake in the answer to the
§ 406(b) question; instead, she plays a part in the fee determination resembling that
of a trustee for the claimants.” Gisbrecht, 535 U.S. at 798 n.6.
With the consent of the parties, the Court designated the undersigned Magistrate
Judge to conduct all proceedings in this civil action, including post-judgment
proceedings, in accordance with 28 U.S.C. § 636(c), Federal Rule of Civil Procedure
73, and S.D. Ala. GenLR 73. (See Docs. 14, 15, 16).

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I.

Background

Williams, at all times represented by Lassiter, brought this action under §
405(g) for judicial review of an unfavorable final decision of the Commissioner
denying her July 5, 2016 application for a period of disability and disability
insurance benefits under Title II of the Social Security Act, 42 U.S.C. § 401, et seq. In
accordance with the Court’s scheduling order (Doc. 3), the Commissioner filed his
answer (Doc. 8) to the complaint and the certified transcript of the administrative
record (Docs. 9), and Williams filed her fact sheet and brief identifying claimed
reversible errors in the Commissioner’s final decision (Doc. 12). Rather than contest
Williams’s brief, the Commissioner filed an unopposed motion to remand this cause
to the Commissioner under § 405(g) for further administrative proceedings. (Doc.
13). The Court granted that motion, and entered final judgment accordingly, on
November 13, 2019. (Docs. 17, 18). Williams subsequently filed a motion for attorney
fees under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412 (Doc. 19),
which the Court granted in the amount of $3,584.25. (See Doc. 22).4
Following remand, Williams received a favorable decision on her application
on October 30, 2020 (see Doc. 23 ¶ 5, PageID.612), and a notice of award computing
“[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, 601 F.3d at 1271.

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her past-due benefits was issued on November 24, 2020. (See Doc. 23-2). Lassiter
filed the present § 406(b) motion on December 21, 2020.
II.

Analysis

Under 42 U.S.C. § 406(b), “[w]henever a court renders a judgment favorable to
a [DIB] claimant…who was represented before the court by an attorney, the court
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). “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).5
a.

Timeliness

Federal Rule of Civil Procedure 54(d)(2), which “applies to a § 406(b)
attorney’s fee claim[,]” Bergen, 454 F.3d at 1277, 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.” Fed. R. Civ. P. 54(d)(2). In the order
“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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remanding Williams’s case, the Court granted “Williams’s counsel an extension of
time in which to file a motion for fees under 42 U.S.C. § 406(b) until 30 days after the
date of receipt of a notice of award of benefits from the [Social Security
Administration].” (Doc. 17, PageID.589).6 The notice of award of benefits attached to
Lassiter’s motion is timestamped as received on November 30, 2020. (See Doc. 23-2,
PageID.624). Lassiter’s present motion is therefore timely.
b.

Reasonableness

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). “[T]he
agreement, not the statute, provides the ‘primary means by which fees are set.’ ”

See Blitch v. Astrue, 261 F. App'x 241, 242 n.1 (11th Cir. 2008) (per curiam)
(unpublished) (“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.”).

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Id. (quoting Gisbrecht, 535 U.S. at 807).
In retaining Lassiter, Williams entered into an attorney fee agreement (Doc.
23-3) which provides, in relevant part, as follows:
2.
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 [Social Security] Act.
3.
It is understood that the term “combined gross retroactive
benefits”, as used herein, represents the total amount of money to
which I and any auxiliary beneficiary or beneficiaries become entitled
through the month before the month SSA effectuates a favorable
administrative determination or decision on my Social Security claim[7]
and that SSI past-due benefits are the total amount of money from
which I become eligible through the month SSA effectuates a favorable
administrative determination or decision on my SSI claim.
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, “§ 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
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
Given the use of the term “effectuates,” the undersigned reads “the month SSA
effectuates a favorable administrative determination or decision on my Social
Security claim” as indicating the month a benefits awards notice was issued
resulting from a favorable decision, rather than the month the favorable decision
was issued.

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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). See also Jackson, 601 F.3d at 1271 (“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.”).
The award notice states that the Commissioner is withholding $14,091.15,
representing “25 percent of past-due benefits” for “for July 2015 through October
2020,”8 to pay Williams’s representative (see Doc. 23-2, PageID.620) – indicating
that Williams’s total past-due benefits are $56,364.60 (i.e. $14,091.15 / 0.25).
Lassiter represents that he has petitioned the Commissioner to approve an award of
$6,000.00 in fees for his services in representing Williams before the SSA. See (Doc.
October 2020 being “the month prior to the month before the month SSA
effectuate[d] a favorable administrative determination or decision” by issuing the
November 2020 award notice. See (Doc. 23-3, ¶ 3); n.7, supra.

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23 ¶ 8, PageID.613); 42 U.S.C. § 406(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.”). Lassiter
requests that he be allowed $8,091.15 (i.e., $14,091.15 - $6,000.00) in fees under §
406(b) for work performed on behalf of Williams in this Court.9 The Court’s duty
now is to determine whether Lassiter’s receipt of that amount for the work
performed in this action is reasonable
Considering the amount of time Lassiter devoted to this case and the services
performed (see Doc. 23-1), the Court finds that the past-due benefits awarded to
Williams 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.
Lassiter obtained favorable results for his client through his efforts, and a review of
the docket for this action does not indicate that Lassiter has been responsible for any
substantial delay. Having considered the guidance set forth in Gisbrecht, the
Abrogating prior Eleventh Circuit precedent, the United States Supreme Court
has held that the 25% cap in § 406(b)(1)(A) applies only to fees for court
representation, and not to the aggregate fees awarded under §§ 406(a) and (b).
Culbertson v. Berryhill, -- U.S. --, 139 S. Ct. 517, 202 L. Ed. 2d 469 (2019). Lassiter’s
fee agreement with Williams nevertheless appears to limit his overall fee to 25%
total of Williams’s past-due benefits.

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undersigned finds that it is reasonable for Lassiter to receive $8,091.15 under §
406(b) in this action.10
III.

Conclusion

In accordance with the foregoing analysis, it is ORDERED that Lassiter’s
motion for allowance of fees as part of the judgment under 42 U.S.C. § 406(b) (Doc.
23) is GRANTED and that Lassiter is allowed as part of the judgment in this action
a reasonable fee under § 406(b) for work performed in the amount of $8,091.15, to be
paid from Williams’s recovered past-due benefits.11
DONE and ORDERED this the 31st day of March 2021.
/s/ Katherine P. Nelson.
KATHERINE P. NELSON
UNITED STATES MAGISTRATE JUDGE

Under EAJA’s Savings Provision, 28 U.S.C. § 2412 note, Act of Aug. 5, 1985, Pub.
L. No. 99–80, § 3, 99 Stat. 183, 186, “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. Lassiter represents that the $3,584.25 in previously paid “EAJA
fees are being temporarily held in [his] firm’s trust account for distribution to the
Plaintiff…” (Doc. 23 ¶ 14, PageID.615). See Jackson, 601 F.3d at 1274 (“The
obligation to make the refund is imposed on the attorney. There is no language in
the Savings Provision that requires courts to take any action with respect to the
refund. In particular, nothing in the Savings Provision commands courts to order a
specific refund procedure if the claimant's attorney has already taken other steps to
effectuate the refund.”).

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Unless a party requests one, no separate judgment regarding attorney’s fees shall
be forthcoming. See Fed. R. Civ. P. 58(a)(3) (judgment need not be set out in a
separate document for an order disposing of a motion for attorney’s fees).

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