Johnson v. Colvin
ORDER entered GRANTING 29 Motion for Attorney Fees. It is ORDERED that Coplin's motion for fees under under 42 U.S.C 406(b) is GRANTED as set out and that he is awarded a reasonable fee under § 406(b) in the sum of $3,897.99. Signed by Magistrate Judge Bert W. Milling, Jr on 5/3/18. (clr)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
CAROLYN W. COLVIN,
Acting Commissioner of
CIVIL ACTION 16-0232-M
This action is before the Court on the Motion for Fees under
42 U.S.C. § 406(b) (Doc. 29) filed by William T. Coplin, Jr.,
Esq., counsel for Plaintiff Dorothy Johnson (“Plaintiff”).
Defendant Acting Commissioner of Social Security (“the
Commissioner”), has filed a Response to the motion (Doc. 30).
Upon consideration, the Court finds that the § 406(b) motion
(Doc. 29) is due to be GRANTED.1
On May 23, 2016, 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
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. 20, 22).
Court’s scheduling order (Doc. 4), the Commissioner filed her
answer to the complaint (Doc. 13) and the record of the
administrative proceedings (Doc. 14), and Plaintiff filed her
brief identifying errors in the Commissioner’s final decision
(Docs. 15, 16).
In response to Plaintiff’s brief, the
Commissioner filed her brief in support of the final decision
The undersigned, by Memorandum Opinion and Order,
reversed the decision of the Commissioner and remanded this
action for further proceedings (Doc. 23) and Judgment was entered
accordingly on November 18, 2016 (Doc. 24).
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. 25), which the Court granted on December 21, 2016,
awarding Plaintiff $1,934.76 in attorney’s fees (Docs. 27, 28).
Following remand to the Social Security Administration (SSA),
an Administrative Law Judge (“ALJ”) issued a favorable decision
for the Plaintiff on December 29, 2017. (Doc. 29-2).
[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).
of award of past-due benefits was issued March 28, 2018, which
also advised that $11,832.75, representing 25% of the total past
due benefits, was being withheld to pay an approved
representative’s fee. (Doc. 29-3).
Coplin filed the present
§ 406(b) motion on April 16, 2018, requesting that the Court
award him a fee in the amount of $3,897.99. (Doc. 29).
[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
“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).”).
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
Bergen v. Comm'r of Soc. Sec., 454 F.3d 1273, 1277
(11th Cir. 2006) (per curiam).
“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,
including mailing time, the motion is found to be timely.
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.
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)).
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, Plaintiff entered into an
“Attorney Fee Agreement” (Doc. 29-1) (“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).
[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, “§ 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 “§ 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 $11,897.75 as representing 25% of the Plaintiff’s
Neither Coplin nor the Commissioner
disputes that figure here.
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. 29,
29-1), 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.”).
Moreover, “an attorney who receives fees under both the
EAJA and 42 U.S.C. § 406(b) must refund the smaller fee to his
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.
has chosen the latter option, further reducing his § 406(b) fee
request by the earlier EAJA award in the amount of $1,934.76.
Thus, the Court’s duty now is to determine whether it is
reasonable for Coplin to receive $3,897.99 (i.e., $11,832.75
- $6,000.00 - $1,934.76) for his services to the Plaintiff in
this Court under their contingency fee agreement.
Considering the amount of time Coplin devoted to this case
(10.1 hours) and the services performed (Docs. 23, 25, 29-6),
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.
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.
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 $3,897.99 under § 406(b).
In accordance with the foregoing analysis, it is ORDERED
that Coplin’s motion for fees under 42 U.S.C. § 406(b) (Doc.
29) is GRANTED as set out above and that he is awarded a reasonable
fee under § 406(b) in the sum of $3,897.99.
DONE this the 3rd day of May, 2018.
BERT W. MILLING, JR.
UNITED STATES MAGISTRATE JUDGE
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