Evans v. Colvin

Filing 28

ORDER entered GRANTING 27 Motion for Attorney Fees and that Coplin is awarded a reasonable fee under § 406(b) in the amount of $8,782.12, as further set out. Signed by Magistrate Judge Bert W. Milling, Jr on 4/19/2017. (clr)

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

)
)
)
)
)
)
)
)
)
)
)

CIVIL ACTION 14-00303-M

ORDER
This action is before the Court on the motion for fees under
42 U.S.C. § 406(b) (Doc. 27) filed by William T. Coplin, Jr., Esq.,
counsel for Plaintiff Richard Evans (“Plaintiff”). Defendant Acting
Commissioner of Social Security (“the Commissioner”) has filed no
response to the motion.

Upon consideration, the Court finds that the

§ 406(b) motion (Doc. 25) is due to be GRANTED.1
I.

Background
On June 30, 2014, Plaintiff, at all times represented by Coplin,

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. 3),

1

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. (Docs. 18, 20).

1

the Commissioner filed her answer to the complaint (Doc. 9) and the
record of the administrative proceedings (Doc. 10), and Plaintiff
filed his brief identifying errors in the Commissioner’s final
decision (Docs. 11, 12).

In response to Plaintiff’s brief, the

Commissioner filed her brief in support of the final decision (Doc.
15).

The undersigned, by Memorandum Opinion and Order, reversed the

decision of the Commissioner and remanded this action for further
proceedings (Doc. 21) and Judgment was entered accordingly on March
12, 2015.

(Doc. 22).

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.
23), which the Court granted on May 8, 2015, awarding Plaintiff
$2,066.42 in attorney’s fees and $492.96 in court costs and litigation
expenses (Doc. 25).

Following remand to the Social Security

Administration (SSA), an Administrative Law Judge (“ALJ”) issued a
favorable decision for the Plaintiff on December 14, 2016. (Doc.
27-2).

A notice of award of past-due benefits was issued March 20,

2

[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).

2

2017, which also advised that $17,341.50, representing 25% of the
total past due benefits, was being withheld to pay an approved
representative’s fee.

(Doc. 27-3).

Coplin filed the present

§ 406(b) motion on March 29, 2017, requesting that the Court award
him a fee in the amount of $8,845.12. (Doc. 27).
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
“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

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).”).

3

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.”
Because Coplin’s § 406(b) motion was filed within 14 days of the date
of the Plaintiff’s notice of award, the motion is 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).
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.’ ”
4

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

§ 406(b)(1)(A)).

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 Coplin to represent him, Plaintiff
entered into an “Attorney Fee Agreement” (Doc. 27-1) (“the
Agreement”), which provides, in relevant part, as follows:
We agree that if SSA favorably decides my claim at the Appeals
Council level; or at the ALJ hearing after a decision by the
Appeals Council or Federal Court; or if a Federal Court
favorably decides my case, I will pay my attorney a fee equal
to 25% of all past-due benefits in my Social Security and/or
SSI disability claims, regardless of the $6,000.00 limit.
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
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
5

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 has
calculated $17,341.50 as representing 25% of the Plaintiff’s
recovered benefits.
that figure here.

Neither Coplin nor the Commissioner disputes

Coplin has been paid by the SSA a $6,000.00 fee

for his services in representing the Plaintiff there, an amount to
which the Plaintiff has agreed. (Docs. 27, 27-1), 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.”).
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
6

earlier EAJA award from his subsequent 42 U.S.C. § 406(b) fee request…”
Id. at 1274.

Coplin has chosen the latter option, further reducing

his § 406(b) fee request by the earlier EAJA award in the amount of
$2,559.38.4

Thus, the Court’s duty now is to determine whether it

is reasonable for Coplin to receive $8,782.12 (i.e., $17,341.50 $6,000.00 - $2,559.38) for his services to the Plaintiff in this Court
under their contingency fee agreement.
Considering the amount of time Coplin devoted to this case (10.9
hours) and the services performed (Docs. 23, 25, 27-6), 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.

Coplin obtained excellent results for his client through his efforts,
and a review of the docket for this action does not indicate that
Coplin 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 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 Coplin to be awarded a fee in the amount

Although the Motion states that the total EAJA fee amount is $2,496.38, the properly
calculated amount is $2,559.38 (the fee in the amount of $2,066.42 plus court costs and litigation
expenses in the amount of $492.96). (Docs. 25, 27-5).
7

4

of $8,782.12 under § 406(b).
III. Conclusion
In accordance with the foregoing analysis, it is ORDERED that
Coplin’s motion for fees under 42 U.S.C. § 406(b) (Doc. 25) is GRANTED
as set out above and that he is awarded a reasonable fee under § 406(b)
in the sum of $8,782.12.
DONE this the 19th day of April, 2017.
s/BERT W. MILLING, JR.
UNITED STATES MAGISTRATE JUDGE

8