Madison v. Colvin

Filing 27

MEMORANDUM OPINION AND ORDER that motion for attorney's fees is GRANTED and that attorney Coplin is awarded the sum of $6,747.00 consisting of $1,754.88 in the EAJA attorney's fees previously awarded to Madison and paid to Coplin, and $4,992.12 to be paid from Madison's recovered past-due benefits. Signed by Magistrate Judge Katherine P. Nelson on 9/13/18. (srr)

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

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CIVIL ACTION NO. 16-00123-N

MEMORANDUM OPINION AND ORDER
This action is before the Court on the motion for fees under 42 U.S.C. § 406(b)
(Doc. 24) filed by William T. Coplin, Jr., Esq., counsel of record for Plaintiff Shirley
Madison.2 The Defendant Commissioner of Social Security (“the Commissioner”)
has filed a response to the motion stating that the Commissioner “neither supports
nor opposes Plaintiff’s counsel’s motion” but is providing an “informational” response
“to assist the Court.”

(See Doc. 26).3

Upon consideration, the Court finds that

Coplin’s § 406(b) motion (Doc. 24) is due to be GRANTED.4

On the Commissioner’s notice (see Doc. 26 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 Magistrate

I.

Background

Madison, 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. 11) to the complaint and the
record of the administrative proceedings (Doc. 12), and Madison filed her fact sheet
and brief identifying alleged errors in the Commissioner’s final decision (Docs. 13,
14).
Rather than file a brief responding to Madison’s claims of error, the
Commissioner filed an unopposed motion to remand Madison’s case under sentence
four of § 405(g) (applicable to SSI claims under § 1383(c)(3)) for further
administrative proceedings (Doc. 16), which the Court granted by order and
judgment entered September 29, 2016 (Docs. 18, 19). Madison subsequently filed a
motion for attorney’s fees under the Equal Access to Justice Act (“EAJA”), 28 U.S.C.
§ 2412(d)5 (Doc. 20), which the Court granted, awarding $1,754.88 in EAJA fees.
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. 16,
17).
5

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

(See Doc. 23).
Following remand to the Social Security Administration (“SSA”), on April 5,
2018, an Administrative Law Judge (“ALJ”) issued a decision in favor of Madison on
her applications for benefits. (See Doc. 24-2). A notice of award of benefits was
issued May 14, 2018, noting, inter alia, that Madison was entitled to $50,988.00 in
past-due benefits, and that $12,747.00 of that amount was being withheld to pay
Madison’s representative.

(See Doc. 24-3).

Coplin filed the present § 406(b)

motion on August 10, 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 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).
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).

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 “Madison’s attorney 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. 18 at 3).
While the notice of award itself is dated May 14, 2018 (see Doc. 24-3 at 2), a
fax coversheet from the SSA that Coplin has included with the notice indicates that
Coplin did not receive the notice until the SSA faxed it to him on August 10, 2018
“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

(see id. at 1).

Coplin’s § 406(b) motion was filed the same day, and the

Commissioner has not argued that the motion is due to be denied as untimely.
Accordingly, the Court finds that Coplin’s § 406(b) 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. 24-1), 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 notice of award issued to Madison represents that $12,747.00 of the
$50,988.00 awarded in past-due benefits (i.e. 25%) was being withheld to pay
Madison’s representative, and Coplin does not challenge that amount.

Coplin has

also included an order from the ALJ approving a $6,000.00 fee for his services in
representing Madison before the SSA.

See (Doc. 24-4); 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.”).

Coplin has reduced 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 Coplin
to receive $6,747.00 (i.e., $12,747.00 - $6,000.00) under § 406(b) for his services to
Madison in this Court under their contingency fee agreement.

Considering the

amount of time Coplin devoted to this case and the services performed (see Doc.
24-6), the Court finds that the benefits awarded to Coplin are not so “large in
comparison to the amount of time counsel spent on the case” such that “a downward
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

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 $6,747.00
under § 406(b).8
“[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 refund. Accordingly, the Court
will reduce the amount of the § 406(b) fee awarded from Madison’s recovered
past-due benefits to $4,992.12 (i.e., $6,747.00 - $1,754.88).9

8

However, as the Commissioner’s response correctly points out (see Doc. 26 at 5),
Coplin misrepresents the record in his supporting memorandum when he claims
that “[h]e prepared a brief which was opposed by Commissioner, who utilized several
attorneys to do so[,]” and that he “was able to meet the burden of proof in persuading
the Court to reverse Commissioner’s decision to deny benefits.” (Doc. 24-7 at 2 – 3).
On the contrary, as explained above, the Commissioner did not oppose Madison’s
brief and instead agreed to a sentence-four remand.
See Wood, 861 F.3d at 1207 (“To preserve [the claimant]’s refund, it is…necessary
for the District Court to add [counsel]’s requested § 406(b) fee together with his EAJA
award to arrive at the ‘true § 406(b) award’ for the purposes of the 25% cap.”).
9

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 $6,747.00, consisting of
$1,754.88 in the EAJA attorney’s fees previously awarded to Madison and paid to
Coplin, and $4,992.12 to be paid from Madison’s recovered past-due benefits.10
DONE and ORDERED this the 13th day of September 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).
10