Wester v. Commissioner of Social Security
Filing
44
ORDER granting in part and denying in part 43 Second Amended Petition for Award of Attorney's Fees Under 42 U.S.C. § 406(b); the Petition is granted to the extent that Plaintiff's counsel is awarded $28,109.63 pursuant to 42 U.S.C. § 406(b), minus the $4,683.60 already received by counsel as EAJA fees; the Petition is otherwise denied; Clerk to enter judgment accordingly; file shall remain closed. SEE ORDER FOR DETAILS. Signed by Magistrate Judge James R. Klindt on 1/14/2021. (BHC)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
TIMOTHY EUGENE WESTER,
Plaintiff,
v.
Case No. 3:17-cv-886-J-JRK
ANDREW M. SAUL,
Commissioner of Social Security,
Defendant.
ORDER
This cause is before the Court on the Second Amended Petition for Award
of Attorney’s Fees Under 42 U.S.C. § 406(b) (Doc. No. 43; “Petition”), filed
January 5, 2021. In the Petition, Plaintiff’s counsel, Chantal J. Harrington,
seeks an award of $30,000.00 pursuant to 42 U.S.C. § 406(b) for representing
Plaintiff in this matter, minus the $4,683.60 she received under the Equal
Access to Justice Act (“EAJA”), for a net fee of $25,316.40. See Petition at 1-3.
Defendant does not oppose the relief requested. See id. at 3.
Section 406(b)(1)(A) states in pertinent part:
Whenever a court renders a judgment favorable to a claimant under
this subchapter who was represented before the court by an
attorney, the court 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). The statute does not impose a twenty-five percent cap
on the aggregate of attorney’s fees awarded under § 406(a)—which are awarded
for work done at the administrative level—and § 406(b). Culbertson v. Berryhill,
139 S. Ct. 517, 519 (2019). Instead, “the 25% cap applies only to fees for
representation before the court, not the agency.” Id. at 522.
The twenty-five percent ceiling was meant “to protect claimants against
‘inordinately large fees’ and also to ensure that attorneys representing
successful claimants would not risk ‘nonpayment of [appropriate] fees.’”
Gisbrecht v. Barnhart, 535 U.S. 789, 805 (2002) (citation omitted). Section
“406(b) does not displace contingent-fee agreements as the primary means by
which fees are set for successfully representing Social Security benefits
claimants in court. Rather, § 406(b) calls for court review of such arrangements
as an independent check, to assure that they yield reasonable results . . . .” Id.
at 807. To determine the reasonableness of fee agreements, the court considers
the agreement itself, in addition to the character and quality of the
representation and the results achieved. Id. at 808 (citations omitted).
Here, Plaintiff and Ms. Harrington entered into a fee agreement
providing for a fee of twenty-five percent of past-due benefits. See Petition at
Ex. 1 (Doc. No. 43-1) (Contract for Federal Court Work). After remand from this
Court, the Social Security Administration found Plaintiff disabled from July
-2-
2011 through January 2015, see Petition at 1-2 ¶ 2, and awarded him
$129,193.32 in past-due benefits: $16,754.82 in total past-due benefits for
Supplemental Security Income (“SSI”) and $112,438.50 in past-due benefits for
Disability Insurance Benefits (“DIB”), see Response to Court Order (Doc. No.
39), filed December 28, 2020, at 1; Amended Declaration of Angela I. Malone
(Doc. No. 40; “Malone Declaration”), filed December 28, 2020, at 3 ¶ 9;
Declaration of Karly R. Ferguson (Doc. No. 41; “Ferguson Declaration”), filed
December 28, 2020, at 2 ¶ 5; Petition at 2 ¶ 7.
The Administration withheld $34,109.63 from Plaintiff’s past-due
benefits for DIB for payment of attorney’s fees, see Ferguson Declaration at 2
¶ 5, but it did not withhold any funds from Plaintiff’s past-due benefits for SSI,
see Malone Declaration at 3 ¶ 10. Out of the $34,109.63 that were withheld from
Plaintiff’s DIB past-due benefits, $6,000.00 were used to pay Plaintiff’s counsel
at the administrative level. See Ferguson Declaration at 2 ¶ 5. The remaining
amount—$28,109.63—constitutes twenty-five percent of Plaintiff’s DIB pastdue benefits.
However, as noted, counsel seeks $30,000.00. This request appears to be
based on Defendant’s assertion that the Administration withheld twenty-five
percent of Plaintiff’s total past-due benefits (which would have been
$32,298.33), plus the $6,000.00 that was paid to Plaintiff’s administrative
-3-
counsel. See Response to Court Order at 1-2; Petition at 2 ¶ 4.
The
Declarations provided by Defendant and summarized above, however, do not
support this conclusion.
Based on the foregoing, the amount of withheld funds that remain for
payment of attorney’s fees ($28,109.63) is not sufficient to pay counsel’s
requested fee ($30,000.00). The Petition is thus due to be granted only to the
extent that counsel be awarded $28,109.63. As to the remaining $1,890.37, the
Court cannot order the Administration to pay such a fee out of its own funds. See
Booth v. Comm’r of Soc. Sec., 645 F. App’x. 455, 458 (6th Cir. 2016). To the extent
the Administration should have withheld a greater portion of Plaintiff’s past-due
benefits, see Culbertson, 139 S. Ct. at 523, Ms. Harrington may request the
Administration to commence overpayment proceedings to recover the funds from
Plaintiff on her behalf. See Booth, 645 F. App’x. at 459; Culbertson, 139 S. Ct. at
523 (stating that “[a]ny concerns about a shortage of withheld benefits for direct
payment and the consequences of such a shortage are best addressed to the
agency, Congress, or the attorney’s good judgment”); 42 U.S.C. § 404(a)(1)(A)
(providing for recovery of overpayments); 20 C.F.R. § 404.501(a)(8) (permitting
adjustments for overpayment in cases in which “a payment of past due benefits
is made to an individual and such payment had not been reduced by the amount
of attorney’s fees payable directly to an attorney . . . .”); Soc. Sec. Admin.,
-4-
Program
Operations
Manual
System
(“POMS”),
1
GN
03920.055,
https://secure.ssa.gov/apps10/poms.nsf/lnx/0203920055 (last visited January 14,
2021) (explaining procedures for recovering accidentally disbursed funds for
payment of attorney’s fees).
Upon review of the representations made in the Petition and all
supporting documentation submitted by counsel and Defendant, and upon
consideration of the quality of the representation and the results achieved, it is
ORDERED:
1.
The Second Amended Petition for Award of Attorney’s Fees Under
42 U.S.C. § 406(b) (Doc. No. 43) is GRANTED in part and DENIED in part.
2.
The Petition is GRANTED to the extent that Plaintiff’s counsel,
Chantal J. Harrington, is awarded $28,109.63 pursuant to 42 U.S.C. § 406(b),
minus the $4,683.60 already received by counsel as EAJA fees. The net award
of $23,426.03 shall be paid to counsel from the past-due benefits awarded to
Plaintiff.
3.
The Petition is otherwise DENIED.
4.
The Clerk of the Court is directed to enter judgment accordingly.
The POMS is a “publicly available operating instructions for processing Social
Security claims.” Wash. State Dep't of Soc. & Health Servs. v. Guardianship Estate of Keffeler,
537 U.S. 371, 385, (2003). “While the POMS does not have the force of law, it can be
persuasive.” Stroup v. Barnhart, 327 F.3d 1258, 1262 (11th Cir. 2003).
1
-5-
5.
The file shall remain closed.
DONE AND ORDERED in Jacksonville, Florida on January 14, 2021.
bhc
Copies to:
Counsel of Record
-6-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?