Kirkland v. Colvin

Filing 29

MEMORANDUM OPINION AND ORDER granting 27 Motion for Attorney Fees in the sum of $6,388.25, consisting of $1,726.09 in the EAJA attorney's fees previously awarded to plaintiff and paid to Coplin, and $4,662.16 to be paid from plaintiff's recovered past-due benefits. Signed by Magistrate Judge Katherine P. Nelson on 7/17/18. (srr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
NORTHERN DIVISION
YVONNE KIRKLAND,
Plaintiff,
v.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,1
Defendant.

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CIVIL ACTION NO. 15-00046-N

MEMORANDUM OPINION AND 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 of record for Plaintiff
Yvonne Kirkland. 2

The Defendant Commissioner of Social Security (“the

Commissioner”) has filed no response to the motion, and the deadline to do so has
expired.3 (See Doc. 28).

Upon consideration, the Court finds that Coplin’s §

406(b) motion (Doc. 27) is due to be GRANTED.4

On Kirkland’s notice (see Doc. 27 at 1), Nancy A. Berryhill is substituted for
Carolyn W. Colvin as the Acting Commissioner of Social Security under Federal
Rule of Civil Procedure 25(d).
1

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 (2002).
2

“[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.
3

4

With the consent of the parties, the Court designated the undersigned

I.

Background

Kirkland, at all times represented by Coplin, commenced this action under
42 U.S.C. §§ 405(g) and 1383(c)(3) for judicial review of an unfavorable final
decision of the Commissioner denying her applications for a period of disability
and disability insurance benefits (“DIB”) under Title II of the Social Security Act,
42 U.S.C. § 401, et seq., and supplemental security income (“SSI”) under Title
XVI of the Social Security Act, 42 U.S.C. § 1381, et seq.

In accordance with the

Court’s scheduling order (Doc. 5), the Commissioner filed her answer (Doc. 12) to
the complaint and the record of the administrative proceedings (Doc. 13);
Kirkland filed her fact sheet and brief identifying errors in the Commissioner’s
final decision (Docs. 14, 15); and the Commissioner filed her brief responding to
Kirkland’s claims of error (Doc. 16).

After the parties jointly waived the

opportunity for oral argument (see Docs. 18, 21), the Court reversed and
remanded the Commissioner’s final decision under sentence four of 42 U.S.C. §
405(g) (applicable to SSI claims under § 1383(c)(3)) for further proceedings.
(Docs. 22, 23).

Kirkland subsequently filed a motion for attorney’s fees under

the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d)5 (Doc. 24), which

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, 20).
5

[S]uccessful Social Security benefits claimants may request a fee award

the Court granted in part and denied in part, awarding Kirkland $1,726.09 in
EAJA attorney’s fees.

(Doc. 26).

Following remand to the Social Security Administration (“SSA”), an
Administrative Law Judge (“ALJ”) issued a favorable decision for Kirkland on
her DIB and SSI applications. (See Doc. 27-2).

A notice of award of past-due

benefits in the amount of $49,553.00 was issued March 11, 2018, with the
notation that $12,388.25 was being withheld “to pay [Kirkland’s] representative.”
(Doc. 27-3).

Coplin filed the present § 406(b) motion on March 19, 2018.
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
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).

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).6 “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

Federal Rule of Civil Procedure 54(d)(2), which “applies to a § 406(b)
attorney’s fee claim[,]” id., 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 ordering remand

in this action, the Court granted “Kirkland’s counsel an extension of time in
which to file a petition for authorization of 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. 22 at 25).

Because Coplin’s § 406(b)

“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).”).
6

motion was filed within 30 days of the date of Kirkland’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, Kirkland entered

into an attorney fee agreement (Doc. 27-1), which provides, in relevant part, as
follows: “We agree that if SSA favorably decides my claim…at the ALJ hearing
level after a decision by the Appeals Council or Federal Court…, 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).
The past-due benefits notice issued to Kirkland represents that $12,388.25
of the $49,553.00 awarded in past-due benefits (i.e. 25%) was being withheld “to
pay [Kirkland’s] representative[,]” (Doc. 27-3), and Coplin does not challenge that
amount.

Coplin further represents that he has petitioned the SSA for approval

of a $6,000.00 fee for his services in representing Kirkland there.

See (Doc. 27 at

1); 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.”).
Though there is no indication in the record that this administrative fee petition
has been approved, Coplin has chosen to reduce the 25% contingency fee by that
amount for his § 406(b) fee request.7
Thus, the Court’s duty now is to determine whether it is reasonable for

Under this Circuit’s precedent, “the 25% limit from § 406(b) applies to total fees
awarded under both § 406(a) and (b), ‘preclud[ing] the aggregate allowance of
attorney’s fees greater than twenty-five percent of the past due benefits received
by the claimant.’ ” Wood v. Comm'r of Soc. Sec., 861 F.3d 1197, 1205 (11th Cir.
2017) (quoting Dawson v. Finch, 425 F.2d 1192, 1195 (5th Cir. 1970) (emphasis
added)). See also 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).”). While the United States Supreme Court has
granted certiorari review of Wood to resolve a circuit split on that issue, see
Culbertson v. Berryhill, 138 S. Ct. 2025 (2018), Dawson and Wood remain binding
precedent unless and until abrogated by the Supreme Court because “grants of
certiorari do not themselves change the law…” Schwab v. Sec'y, Dep't of Corr.,
507 F.3d 1297, 1298 (11th Cir. 2007) (per curiam).
7

Coplin to receive $6,388.25 (i.e., $12,388.25 - $6,000.00) under § 406(b) for his
services to Kirkland in this Court under their contingency fee agreement.
Considering the amount of time Coplin devoted to this case and the services
performed (see Doc. 27-6),8 the Court finds that the benefits awarded to Kirkland
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.

Having considered

the guidance set forth in Gisbrecht, the undersigned finds that it is reasonable for
Coplin to receive $6,388.25 under § 406(b).
“[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.

Coplin has chosen the latter option to effectuate the

As it did when awarding EAJA fees, the Court discounts the hour purportedly
spent for “Review of Order to amend pauperis petition; letter to client” and
“Preparation of amended pauperis petition; e-filing of same” because “[n]o such
order was entered in this action, nor was an ‘amended pauperis petition’ filed.”
(Doc. 26 at 5).
8

refund.

Accordingly, the Court will reduce the amount of the § 406(b) fee

awarded from Kirkland’s recovered past-due benefits to $4,662.16 (i.e., $6,388.25
- $1,726.09).
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. 27) is GRANTED and that Coplin
is awarded a reasonable fee under § 406(b) in the sum of $6,388.25, consisting of
$1,726.09 in the EAJA attorney’s fees previously awarded to Kirkland and paid
to Coplin, and $4,662.16 to be paid from Kirkland’s recovered past-due benefits.9
DONE and ORDERED this the 17th day of July 2018.
/s/ Katherine P. Nelson
KATHERINE P. NELSON
UNITED STATES MAGISTRATE JUDGE

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).
9