Brewton v. Social Security Administration Commissioner
Filing
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MEMORANDUM OPINION AND ORDER granting 20 Motion for Attorney Fees. Plaintiff's counsel will be awarded the full $4,068.58, see Order for specifics. Signed by Honorable James R. Marschewski on June 15, 2015. (hnc)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
DAMON P. BREWTON
v.
PLAINTIFF
Civil No. 11-2156
CAROLYN W. COLVIN1, Commissioner
Social Security Administration,
DEFENDANT
MEMORANDUM OPINION AND ORDER
On August 18, 2011, Plaintiff, David Collins, appealed to this Court from the denial of her
application for social security disability benefits by the Commissioner of the Social Security
Administration (hereinafter “Commissioner”). ECF No. 1. On September 17, 2012, the matter was
remanded for further consideration, pursuant to sentence four, 42 U.S.C. § 405(g). ECF Nos. 12,
13.
I.
Background:
Plaintiff filed a Motion for An Award of Attorney Fees Under The Equal Access to Justice
Act, (hereinafter the “EAJA”), on December 11, 2012. ECF No. 14, 15. On December 27, 2012,
the undersigned entered a report and recommendation recommending that Plaintiff be awarded
$4,068.58 in attorney fees pursuant to the EAJA, to be paid in addition to, but not out of, any past
due benefits which Plaintiff may be awarded in the future. ECF No. 19.
On January 29, 2013, Plaintiff’s counsel was notified that the full amount of Plaintiff’s EAJA
award would be applied to offset his child support debt. On July 19, 2013, a favorable decision was
entered, finding the Plaintiff disabled from April 1, 2001, through the date of the decision. On
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Carolyn W. Colvin became the Social Security Commissioner on February 14, 2013. Pursuant to Rule
25(d)(1) of the Federal Rules of Civil Procedure, Carolyn W. Colvin has been substituted for Commissioner Michael
J. Astrue as the defendant in this suit.
February 4, 2015, Plaintiff’s counsel was notified that $23,961.75 had been withheld from the
Plaintiff’s past-due benefits in anticipation of an authorized attorney’s fee. ECF No. 20-5.
On April 13, 2015, Plaintiff‘s attorney filed a motion for attorney’s fees pursuant to 42
U.S.C. § 406(b). ECF No. 20. Counsel requests attorney’s fees pursuant to 42 U.S.C. § 406(b) in
the amount of $4,068.58. The Defendant filed a response objecting to the Plaintiff’s motion as being
untimely. ECF No. 22. And, the Plaintiff filed a reply in response. ECF No. 23. This matter is
currently before the undersigned by consent of the parties. ECF No. 3.
II.
Applicable Law:
Under both the EAJA and 42 U.S.C. § 406(b), courts may award attorney fees to prevailing
claimants and their attorneys. Gisbrecht v. Barnhart, 535 U.S. 789, 796 (2002). A double recovery,
however, is not permitted. When both awards are granted, the attorney must refund the lesser award
to the client. Id. “Thus, an EAJA award offsets an award under Section 406(b), so that the amount
of the total past-due benefits the claimant actually receives will be increased by the EAJA award up
to the point the claimant receives 100 percent of the past-due benefits.” Id. (quotations and ellipses
omitted).
The basis for counsel’s motion, 42 U.S.C. § 406, deals with the administrative and judicial
review stages in Social Security proceedings discretely—“ § 406(a) governs fees for representation
in administrative proceedings; § 406(b) controls fees for representation in court.” Id. at 794. Unlike
the Equal Access to Justice Act (“EAJA”), 42 U.S.C. § 406(b) does not authorize the prevailing
party to recover fees from the losing party. Id. at 802. “Section 406(b) is of another genre: It
authorizes fees payable from the successful party’s recovery.” Id.
Congress enacted § 406(b) to “protect claimants against ‘inordinately large fees' and also to
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ensure that attorneys representing successful claimants would not risk ‘nonpayment of [appropriate]
fees.’” Id. at 805. Recognizing that contingent-fee agreements are the primary means by which fees
are set for successfully representing Social Security benefits claimants in court, section 406(b) calls
for court review of such arrangements as an independent check, to assure that they yield “reasonable
results in particular cases.” Id. at 807. Therefore, even if the contingency-fee agreement is at or
below the 25 percent boundary, “the attorney for the successful claimant must show that the fee
sought is reasonable for the services rendered.” Id. at 807.
District courts are tasked with the responsibility of conducting an “independent check” to
ensure the fee award is reasonable. Id. A court should determine whether a downward adjustment
of an attorney’s recovery is appropriate “based on the character of the representation and the results
the attorney achieved.” Id. at 808. To avoid a windfall to a successful claimant’s attorney, the court
should make a downward adjustment “[i]f the award of benefits is large in comparison to the amount
of time counsel spent on the case.” Id.
III.
Discussion:
The court, having reviewed this case in light of Gisbrecht, is required to give primacy to the
contingent-fee agreement. Here, the agreement calls for a fee of 25 percent of past-due benefits or
a flat fee of $5,300.00, the same benchmark percentage permitted by statute. See 42 U.S.C. §
406(b)(1)(A). The court finds that Ms. Brooks is not responsible for any delay allowing her to
“profit from the accumulation of benefits during the pendency of the case in court,” nor are the
benefits “large in comparison to the amount of time counsel spent on the case.” Gisbrecht, 535 U
.S. at 808. (Ms. Brooks alleges to have spent 25.30 attorney hours and 2.75 paralegal hours working
on the substance of this matter. ECF No. 20-2). The court further finds that Ms. Brooks achieved
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a favorable result for Plaintiff and bore the risk of no payment under the contingency-fee agreement
had Plaintiff not been successful. In accordance with Gisbrecht, the court concludes that Plaintiff's
counsel has met the burden of showing the reasonableness of the fees requested under 42 U.S.C. §
406(b), and is entitled to an award of $4,068.58.
With respect to the timeliness of Plaintiff’s motion, the Notice of Award is dated July 19,
2013, while the Notice of Withholding is dated February 4, 2015. Plaintiff filed her motion for
attorney fees on April 13, 2015, 633 days after the favorable decision on remand finding Plaintiff
disabled and entitled to benefits and 68 days after the Agency’s Notice of Withholding. ECF Nos.
20, 22. We note that the United States Court of Appeals for the Eighth Circuit has not addressed the
specific issue of timeliness of a § 46(b) fee request. However, the Tenth and Seventh Circuits have
adopted a “reasonable time” rule for these filings, and consider reasonableness on a case-by-case
basis , 815 F.2d 1152 (7th cir. 1987) (holding petition for fees under § 406(b)(1) raises issues
collateral to the merits of the cause of action and governed by Fed. R. Civ. P. Rule 54 which
“imposes no time limit apart from an implicit requirement of reasonableness); see also McGraw v.
Barnhart, 450 F.3d 493, 505 (10th Cir. 2006) (employing Fed. R. Civ. P. Rule 60(b)(6) and finding
a motion for fees under § 406(b)(1) should be filed within a reasonable time of the Commissioner’s
decision awarding benefits).
In her reply, Plaintiff’s counsel states that in the weeks following the favorable decision, she
began attempting to obtain her EAJA award directly from the Plaintiff. ECF. No. 23.
On January 8, 2014, after several unreturned phone calls, counsel sent a letter to
Plaintiff reminding him of his agreement to reimburse her for any EAJA award that
may be taken to pay his federal debt and requesting payment.
On June 2, 2014, Plaintiff’s counsel sent a second letter to Plaintiff, again requesting
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payment of her EAJA fee for work before the district court. On October 7, 2014,
Plaintiff’s counsel sent a third letter to Plaintiff, again requesting payment of her fee
and informing Plaintiff that if she was still unable to obtain payment, she may
ultimately petition the Court for her fee to be paid directly from Plaintiff’s past-due
benefits. Despite numerous letters and phone calls requesting payment, the Petitioner
has still been unable to collect the balance of the EAJA award directly from Plaintiff.
On February 4, 2015, the Agency notified Plaintiff’s counsel that it was withholding
25 percent of Plaintiff’s past-due benefits, or $23,961.75, in anticipation of payment
of an attorney fee under § 406 (b). Following this notice of withholding, Plaintiff’s
counsel wrote the Agency on February 17, 2015, requesting direct payment of the
balance of the EAJA fee from Plaintiff’s past-due benefits award, and reserving her
right to petition the district court if necessary.
On March 16, 2015, Plaintiff’s counsel was informed by Central Operations that
although the requested amount of $4,068.58 was being approved at that time,
Plaintiff’s counsel would need to bring a motion before the District Court for an
award under § 406(b) (1) before the funds could be directly released to her. Also at
that time, the remaining funds being withheld were released to Plaintiff.
ECF No. 23. The Court believes Plaintiff’s counsel has given sufficient reason for the delay, and
therefore will consider his motion to be timely filed.
IV.
Conclusion:
Accordingly, Plaintiff’s application for attorney’s fees pursuant to 42 U.S.C. § 406(b), is
granted in the amount of $4,068.58. While we do note that Plaintiff was awarded an EAJA fee in
the amount of $4,068.58, Plaintiff’s counsel contends that payment was never made because the full
amount was paid to the Department of the Treasury to offset the Plaintiff’s child support debt. The
Defendant does not refute this argument, instead stating as follows: “In the event an EAJA payment
error by the agency is discovered, and if Plaintiff’s attorney is [sic] receives fees pursuant to the
EAJA and 406(b), Plaintiff’s attorney must refund the amount of the smaller fee to Plaintiff.” ECF
No. 22. Therefore, we will award Plaintiff’s counsel the full $4,068.58 fee. However, should he
receive the $4,068.58 awarded pursuant to the EAJA, she is ordered to return it to the Plaintiff.
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IT IS SO ORDERED this 15th day of June 2015.
/s/ J. Marschewski
HON. JAMES R. MARSCHEWSKI
UNITED STATES MAGISTRATE JUDGE
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