Champion v. Colvin

Filing 27

ORDER granting 25 Motion for Attorney Fees in the amount of $11,495.01. Signed by Magistrate Judge Katherine P. Nelson on 9/16/2016. (srr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
NORTHERN DIVISION
OTIS CHAMPION,
Plaintiff,

)
)
)
)
)
)
)
)

v.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.

CIVIL ACTION NO. 14-00464-N

ORDER
This action is before the Court on the motion for fees under 42 U.S.C. § 406(b)
(Doc. 25) filed by William T. Coplin, Jr., Esq., counsel for Plaintiff Otis Champion
(“the

Plaintiff”).

The

Defendant

Commissioner

of

Social

Security

(“the

Commissioner”) has filed no response to the motion, despite having been given an
opportunity to do so (see Doc. 26). Upon consideration, the Court finds that the §
406(b) motion (Doc. 25) is due to be GRANTED.1
I.

Background

On October 6, 2014, the 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. 7), the Commissioner filed her answer (Doc.
12) to the complaint and the record of the administrative proceedings (Doc. 13), and
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. 17, 18).

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the Plaintiff filed his brief identifying errors in the Commissioner’s final decision
(Docs. 14, 15).

In response to the Plaintiff’s brief, the Commissioner filed an

unopposed motion to remand under sentence four of § 405(g) (Doc. 16). The Court
granted the motion to remand and entered judgment accordingly on April 10, 2015.
(Docs. 19, 20). The 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. 22), which the
Court granted on July 8, 2015, awarding the Plaintiff $1,841.99 in attorney’s fees
(Doc. 24).

Following remand to the Social Security Administration (SSA), an

Administrative Law Judge (“ALJ”) issued a favorable decision for the Plaintiff on
April 26, 2016. (See Doc. 25-2). A notice of award of past-due benefits was issued
June 29, 2016, which also advised that $19,337.00, representing 25% of past due
benefits, was being withheld “in order to pay the approved lawyer’s fee.”

(Doc. 25-3

at 3). Coplin filed the present § 406(b) motion on July 18, 2016, requesting that the
Court award him $11,495.01.
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
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).

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 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.”

In ordering remand in this action, “the Court grant[ed] Champion’s

attorney an extension of time in which to file a petition for authorization of

“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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attorney’s fees under 42 U.S.C. § 406(b) until thirty days after receipt of a notice of
award of benefits from the Social Security Administration.”

(Doc. 19 at 3).

Because Coplin’s § 406(b) motion was filed within 30 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.’ ”

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, the
Plaintiff entered into an “Attorney Fee Agreement” (Doc. 25-1) (“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 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
$19,337.00 as representing 25% of the Plaintiff’s recovered benefits. Neither Coplin
nor the Commissioner disputes that figure here.

Coplin has petitioned the SSA for

approval of a $6,000.00 fee for his services in representing the Plaintiff there, an

amount to which the Plaintiff has agreed.

See (Doc. 25-4), 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.”). Though there is no indication in the record that
petition has been approved, Coplin has chosen to reduce his requested § 406(b) fee by
that amount.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. Coplin has chosen the latter option, further reducing his §

406(b) fee request by $1,841.99.

Thus, the Court’s duty now is to determine

whether it is reasonable for Coplin to receive $11,495.01 (i.e., $19,337.00 - $6,000.00
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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- $1,841.99) for his services to the Plaintiff in this Court under their contingency fee
agreement.
Considering the amount of time Coplin devoted to this case (9.9 hours) and the
services performed (see Docs. 22-2, 25-6), 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. By all accounts, Coplin 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 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 $11,495.01 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 and that he is
awarded a reasonable fee under § 406(b) in the sum of $11,495.01.
DONE and ORDERED this the 16th day of September 2016.
/s/ Katherine P. Nelson
KATHERINE P. NELSON
UNITED STATES MAGISTRATE JUDGE