Thomas v. Colvin

Filing 31

ORDER GRANTING 30 Coplin's Motion for Attorney Fees under 42 U.S.C. § 406(b) as set out, and that he is AWARDED a reasonable fee under § 406(b) in the sum of $17,912.75. Signed by Magistrate Judge Bert W. Milling, Jr on 5/22/2018. (clr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
NORTHERN DIVISION
ROBERT D. THOMAS,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of
Social Security,
Defendant.

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CIVIL ACTION 15-0214-M

ORDER
This action is before the Court on the Motion for Attorney
Fees Pursuant to 42 U.S.C. § 406(b) (Doc. 30) filed by William
T. Coplin, Jr., Esq., counsel for Plaintiff Robert D. Thomas
(“Plaintiff”).

Upon consideration, the Court finds that the

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

Background
On April 20, 2015, 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. 5), the Commissioner filed her

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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. 21, 23).

answer to the complaint (Doc. 10) and the record of the
administrative proceedings (Doc. 11), and Plaintiff filed his
brief identifying errors in the Commissioner’s final decision
(Docs. 12, 13).

In response to Plaintiff’s brief, the

Commissioner filed her brief in support of the final decision
(Doc. 18).

The undersigned, by Memorandum Opinion and Order,

reversed the decision of the Commissioner and remanded this
action for further proceedings (Doc. 24) and Judgment was
entered accordingly on February 17, 2016.

(Doc. 25).

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. 26), and the Commissioner filed a Response
objecting to the request (Doc. 27).

After consideration, the

Court denied the Motion, finding that the Commissioner’s
position in this action was substantially justified. (Docs. 28,
29).
Following remand to the Social Security Administration

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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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(SSA), an Administrative Law Judge (“ALJ”) issued a favorable
decision for the Plaintiff on March 2, 2018. (Doc. 30-2).

A

notice of award of past-due benefits was issued May 16, 2018,
which also advised that $23,912.75, representing 25% of the
total past due benefits, was being withheld to pay an approved
representative’s fee.

(Doc. 30-3).

Coplin filed the present

§ 406(b) motion on May 21, 2018, requesting that the Court award
him a fee in the amount of $17,912.75. (Doc. 30).
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

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

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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.” 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 contingentfee 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.

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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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.’ ”
1285 (quoting 42 U.S.C. § 406(b)(1)(A)).

Id. at

However “the

agreement, not the statute, provides the ‘primary means by which
fees are set.’ ”

Id. (quoting Gisbrecht, 535 U.S. at 807).

retaining Coplin to represent him, Plaintiff entered into an
“Attorney Fee Agreement” (Doc. 30-1) (“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

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In

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 $23,912.75 as representing 25% of the Plaintiff’s
recovered benefits.

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. 30, 30-1), 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.”).

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Thus, the Court’s duty now is to determine whether it is
reasonable for Coplin to receive $17,912.75 (i.e., $23,912.75 $6,000.00) for his services to the Plaintiff in this Court under
their contingency fee agreement.

Considering the amount of time

Coplin devoted to this case (10.15 hours) and the services
performed since April 19, 2015 (Docs. 28, 29, 30-5), 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 of
$17,912.75 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. 30)
is GRANTED as set out above and that he is AWARDED a reasonable

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fee under § 406(b) in the sum of $17,912.75.
DONE this the 22nd day of May, 2018.

s/BERT W. MILLING, JR.
UNITED STATES MAGISTRATE

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