Tubbs v. Colvin

Filing 42

Order GRANTING 41 Amended MOTION for Attorney Fees pursuant to 42 U.S.C. § 406(B) filed by Carol Tubbs. The Court's Order dated 9/7/2021 (doc. 39 ) is hereby WITHDRAWN, and the judgment entered 9/20/2021 (doc. 40 ) is hereby VACATED. Signed by Magistrate Judge Sonja F. Bivins on 4/10/2023. (meh)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
NORTHERN DIVISION
CAROL TUBBS,
Plaintiff,
vs.
KILOLO KIJAKAZI,
Acting Commissioner of
Social Security,
Defendant.

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CIVIL ACTION NO. 15-00597-B

ORDER
This action is before the Court on Petitioner William T.
Coplin’s amended motion for attorney’s fees pursuant to 42 U.S.C.
§ 406(b) (Doc. 41). Upon consideration of the motion and all other
pertinent portions of the record, and for the reasons set forth
below, the Court finds that the amended motion for attorney’s fees
(Doc. 41) is due to be GRANTED, the order granting Petitioner
Coplin’s prior motion for attorney fees under 42 U.S.C. § 406(b)
(Doc. 39) is due to be WITHDRAWN, and the judgment awarding
attorney’s fees in the sum of $13,846.73 under § 406(b) (Doc. 40)
is due to be VACATED.
The

record

reflects

that

Plaintiff

Carol

Tubbs

hired

Petitioner Coplin to represent her in connection with her claim
for supplemental security income in July 2012.
Doc. 35-1).

(Doc. 13 at 93;

In November 2015, Tubbs, through her attorney Coplin,

filed

the

instant

action

seeking

judicial

review

of

the

Commissioner of Social Security’s decision denying her claim for
supplemental security income.

(Doc. 1).

On March 27, 2017, this

Court ordered that the Commissioner’s decision be reversed and
remanded for further administrative proceedings.

(Docs. 27, 28).

On May 14, 2021, following remand, an Administrative Law Judge
rendered a fully favorable decision finding that Tubbs had been
disabled since May 10, 2019.

(Doc. 35-2).

On July 16, 2021, the Social Security Administration sent an
award notice advising that the past-due benefits owed to Tubbs
totaled $86,514.00.1

(Doc. 35-3).

On August 16, 2021, Coplin

filed a motion for attorney’s fees pursuant to 42 U.S.C. § 406(b).
(Doc. 35).

In that motion, Coplin requested attorney’s fees under

§ 406(b) in the amount of $13,846.73, based on the information
provided by the Social Security Administration that Tubbs’ pastdue benefits totaled $86,514.00.2

(Id.).

1

The July 2021 award notice indicated that Tubbs was entitled to
back payments dating back to November 2011. (Doc. 35-3 at 2-3).

2

Attorneys representing successful claimants in Social Security
appeals may obtain attorneys’ fees under three statutory
provisions.
First, 42 U.S.C. § 406(a) provides the exclusive
avenue for attorneys seeking fees for successful work performed at
the administrative level.
Second, 42 U.S.C. § 406(b) permits
district courts to award reasonable attorneys’ fees for successful
work performed in federal court.
Third, the Equal Access to
Justice Act (“EAJA”) also permits courts to award reasonable
attorneys’ fees for successful work performed in federal court,
provided that the Commissioner’s position was not “substantially
justified” and there are no “special circumstances” that would
2

On September 7, 2021, the Court entered an order granting
Coplin’s motion for attorney’s fees in the sum of $13,846.73 under
§ 406(b).

(Doc. 39).

On September 20, 2021, the Court entered a

judgment awarding attorney’s fees in the amount of $13,846.73
pursuant to § 406(b).

(Doc. 40).

On March 16, 2022, Coplin filed the instant amended motion
for attorney’s fees pursuant to 42 U.S.C. § 406(b).

(Doc. 41).

In the instant motion, Coplin states that the award notice issued
by the Social Security Administration on July 16, 2021, which
formed the basis for his prior motion for attorney’s fees under §
406(b), was incorrect.

(Id. at 1).

Coplin attaches a revised

award notice dated March 11, 2022, which indicates that Tubbs’

make such an award unjust. 28 U.S.C. 2412(d)(1)(A). Fees obtained
under the first two sections are drawn from the past-due benefits
awarded to the claimant, but “EAJA fees are paid from agency
funds.” Jackson v. Comm’r of Soc. Sec., 601 F.3d 1268, 1271 (11th
Cir. 2010).
The EAJA also contains a Savings Provision, which
provides that “where the claimant’s attorney receives fees for the
same work under both [406(b) and the EAJA], the claimant’s attorney
refunds to the claimant the amount of the smaller fee.”
Id.
(quotation omitted).
The contingent fee agreement between Tubbs and Coplin provided
for attorney’s fees of up to 25 percent of all past-due benefits
following a favorable decision after a federal court remand. (See
Doc. 13 at 93; Doc. 35-1). Pursuant to the fee agreement, Coplin
moved for attorney’s fees under § 406(b) in the amount of
$13,846.73. (Doc. 35). This amount represented the difference
between 25 percent of the past-due benefits listed in the July
2021 award notice ($21,628.50), and the amount of fees Coplin had
requested under § 406(a) for work performed at the administrative
level ($6,000) combined with the fees already awarded under the
EAJA ($1,781.77). (See id.).
3

past-due benefits total $20,351.00,3 as opposed to the $86,514.00
figure listed in the prior award notice.

(Doc. 41-1).

In light

of the significantly smaller amount of past-due benefits listed in
the updated award notice, Coplin states that “no attorney fee is
payable” under § 406(b).
Based

on

the

(Doc. 41 at 1).

foregoing,

including

Petitioner

Coplin’s

representation that no attorney’s fee is payable under 42 U.S.C.
§ 406(b) in light of the updated award notice dated March 11, 2022,
the amended motion for attorney fees (Doc. 41) is GRANTED.
Court’s

order

dated

September

7,

2021

(Doc.

39)

is

The

hereby

WITHDRAWN, and the judgment entered September 20, 2021 (Doc. 40)
is hereby VACATED.
DONE this 10th day of April, 2023.
/s/ SONJA F. BIVINS____
UNITED STATES MAGISTRATE JUDGE

3

The March 11, 2022 award notice indicates that Tubbs is entitled
to back payments for the period from June 2019 to July 2021. (Doc.
41-1 at 1).
4