Coulter v. Commissioner of Social Security
Filing
26
MEMORANDUM OPINION AND ORDER by Magistrate Judge Lanny King on 9/29/2014. Pursuant to 42 U.S.C. § 405(b), the Court hereby GRANTS Plaintiff's counsel's motion and amended motion (DN 19 and 20 ) and AWARDS attorney fees in the amount of $5,176.50. Counsel shall REIMBURSE Plaintiff the $2,137.50 that this Court previously awarded Plaintiff pursuant to the Equal Access to Justice Act. cc: Counsel(CDR)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT BOWLING GREEN
CIVIL ACTION NO. 1:13‐CV‐00011‐LLK
PENNY K. COULTER
v.
CAROLYN W. COLVIN
Commissioner of Social Security
MEMORANDUM OPINION AND ORDER
PLAINTIFF
DEFENDANT
This matter is before the Court on the motion and amended motion of Plaintiff’s counsel for an
award of attorney fees pursuant to 42 U.S.C. § 406(b). Docket Numbers (DN) 19 and 20.1 Counsel seeks
$5,176.50 for 17.85 hours of work done before this Court that resulted in a remand to the Commissioner
for further administrative proceedings and ultimately a fully Plaintiff‐favorable decision. The
Commissioner agrees that the requested fee is reasonable. DN 25.2
The Court will GRANT the motions because the requested fee is reasonable.
Background facts and procedural history
Plaintiff filed a complaint seeking judicial review of the final decision of the Commissioner
denying her claim for Title II Social Security disability benefits pursuant to 42 U.S.C. § 405(g). DN 1.
This Court remanded Plaintiff’s claim to the Commissioner for further administrative
proceedings. DN 15.
Because she was the prevailing party, Plaintiff filed a motion for attorney fees under the Equal
Access to Justice Act, 28 U.S.C. § 2412, in the amount of $2,137.50. DN 16. In addition, Plaintiff moved
1
In her amended motion, counsel acknowledges that, upon receipt of the requested § 406(b) fee, she must
reimburse Plaintiff the $2,137.50 fee that this Court previously awarded Plaintiff pursuant to the Equal Access to
Justice Act (EAJA) (DN 18). The money is presently being held in the escrow account of counsel’s law firm.
2
Even though the § 406(b) motion is unopposed, the Court must still determine whether the requested fee is
reasonable. Gisbrecht v. Barnhart, 535 U.S. 789, 807 (2002).
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for leave to re‐docket this case for consideration of a fee for services under 42 U.S.C. § 406(b) in the
event the proceedings upon remand resulted in a favorable decision. DN 16.
The Commissioner did not oppose the EAJA fee petition and did not respond to the request to
re‐docket.
The Court granted the EAJA fee petition but denied the motion to re‐docket as premature. DN
18.
Upon remand, the Commissioner issued a Plaintiff‐favorable decision.
Plaintiff’s counsel filed a motion and amended motion for an award of attorney’s fees pursuant
to 42 U.S.C. § 406(b). DN 19 and 20.
The Commissioner opposed the motions on the ground that they were premature as Plaintiff
had not yet received the Notice of Award identifying the amount of Plaintiff’s past‐due benefits, which is
necessary for calculating the statute's maximum fee award of 25 percent of past‐due benefits. DN 21.
The Court ruled that: 1) Pursuant to this Court’s precedent interpreting Joint Local Rules (LR)
83.11(d), Robertson v. Commissioner, No. 1:07‐CV‐00064‐JHM, 2011 WL 4737603 (W.D.Ky.), Plaintiff’s §
406(b) fee petition was not premature; 2) The United States Attorney must submit a “statement of
accrued benefits” and respond to the reasonableness of the fee request within 30 days; and 3) “If the
United States Attorney has yet to receive all applicable Notices of Award from the Commissioner, the
United States Attorney will have to notify the Court of the delay and request a stay of the proceeding
pending receipt of the Notices of Award.” DN 23, p. 2 quoting Robertson, supra, at *4.
Prior to the running of the Commissioner’s 30 days, Plaintiff received and submitted a copy of
the Notice of Award. DN 24. The Notice states, among other things, that the Commissioner withheld 25
percent of past‐due benefits, or $12,082.23, “in case we need to pay your lawyer.” DN 24‐1, p. 2.
The Commissioner responded that the § 406(b) fee request is reasonable. DN 25.
2
There are three separate statutory bases for court‐awarded attorney fees
following successful litigation in federal court resulting in an award of Title II disability benefits.
Plaintiff and counsel entered into a contingency fee agreement in which counsel would be
entitled to 25 percent of any past‐due disability benefits awarded to Plaintiff. DN 19‐2.
As indicated above, the Court has already awarded Plaintiff $2,137.50 in attorney fees pursuant
to the Equal Access to Justice Act (EAJA). DN 18.
First, under the EAJA, a party that prevails against the United States in federal 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). Gisbrecht v. Commissioner,
535 U.S. 789, 796 (2002). Unlike § 406(b) fees, which are taken from the claimant's recovery, EAJA fees
are paid from agency funds.
Second, under § 406(a), the Commissioner may award the fee specified in a contingency fee
agreement, following federal‐court remand and a claimant‐favorable decision, if that fee does not
exceed the lesser of 25 percent of past‐due benefits or $4,000. This amount was increased to $6,000
effective June 22, 2009. 74 Fed.Reg. 6080.
Third, under 42 U.S.C. § 406(b), a court entering judgment in favor of a plaintiff 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, supra, at 807. A § 406(b) fee is paid by the plaintiff out of the past‐
due benefits awarded. 42 U.S.C. § 406(b)(1)(A).
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Discussion
Plaintiff’s counsel seeks attorney fees pursuant to § 406(b), stating she intends to petition the
Commissioner for allowance of a fee equal to 25 percent of past‐due benefits ($12,082.23) “less the
amount of § 406(b) fees awarded by this Court [$5,176.50]. DN 19‐10, p. 3.
Attorney fee awards in Social Security cases brought in federal court are authorized by 42 U.S.C.
§ 406(b)(1)(A), which provides, in pertinent part, that:
Whenever a court renders a judgment favorable to a claimant under this subchapter [Title
II] 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....
A § 406(b) fee is appropriate when a court remands a case to the Commissioner for further
proceedings and the Commissioner subsequently awards past‐due benefits. While the Social Security
Administration typically withholds 25 percent of past‐due benefits for payment of attorney fees,
separate attorney fee awards are made under § 406 for work performed before the administrative
agency and for work performed in federal court. See Horenstein v. Secretary, 35 F.3d 261, 262 (6th
Cir.1994) (under §§ 406(a) and 406(b) “each tribunal may award fees only for the work done before it”).
Generally, a fee request is deemed reasonable and not resulting in a windfall to counsel if it
reflects no more than “twice the standard [hourly] rate for such work in the relevant market.” Hayes v.
Secretary, 923 F.2d 418, 422 (6th Cir.1990).3 See Campbell v. Commissioner, 2009 WL 2342739 (E.D.Ky.)
(the court approved a fee petition consisting of the entire 25 percent of past‐due benefits in light of
Hayes because dividing that requested sum by the total hours of work in federal court resulted in a
“hypothetical hourly rate ... within the range of twice a standard hourly rate”).
3
This multiplier of 2 is appropriate because “social security attorneys are successful in approximately 50% of the
cases they file in the courts. Without a multiplier, a strict hourly rate limitation would insure that social security
attorneys would not, averaged over many cases, be compensated adequately.” Hayes, supra.
4
Counsel states that her hourly rate is $145.00; that $145.00 per hour is standard for such work
in federal court in the south‐central Kentucky area; and that she is requesting twice that rate, or $290.00
per hour. DN 19‐10, p. 3 of 4. Counsel has itemized 17.85 hours of work done before this Court. DN 19‐
4.
Although the Court is unaware of any specific hourly rate that is deemed “standard” in the
Western District of Kentucky in Social Security cases, the Court finds that a reasonable frame of
reference is the rate charged by attorneys under the Equal Access to Justice Act (EAJA). This Court has
approved a rate under EAJA, with adjustments for costs of living since the EAJA was passed, of $168.00
per hour. Forest Service Employees For Environmental Ethics v. United States Forest Service, No. 5:08‐
CV‐00091‐TBR, 2010 WL 5159321 (W.D.Ky.).
The Court finds that counsel’s hourly rate of $145.00 is reasonable, that the amount of time
counsel spent on the case before this Court was reasonably necessary, and that the requested attorney
fees in the amount of $5,176.504 is reasonable.
Effect of prior EAJA award
The EAJA contains a Savings Provision that 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.” 28 U.S.C. § 2412 note.
In her amended motion, counsel acknowledges that, upon receipt of the requested § 406(b) fee,
she must reimburse Plaintiff the $2,137.50 EAJA fee previously awarded. DN 20.
Prior to Astrue v. Ratliff, 560 U.S. 586 (2010), it was common practice for the federal courts to
award EAJA fees directly to the plaintiff’s attorney.5 Ratliff held that attorney fees must be awarded to
4
$290.00 per hour times 17.85 hours equals $5,176.50.
The practice was viewed as facilitating EAJA’s primary purpose, which is to encourage attorneys who might not
otherwise have a financial incentive to represent plaintiffs in prosecuting actions against the United States and its
agencies in federal court.
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the “prevailing party” (i.e., the plaintiff herself) and apparently left it a private matter between the
plaintiff and her attorney how the attorney would be paid for services rendered.
The law remains unsettled in the wake of Ratliff. In this case, in light of a “growing consensus of
courts within the Sixth Circuit that under Ratliff, the proper course is to award fees directly to Plaintiff
and remain silent as to the direction of those fees,” the Court denied Plaintiff’s request that the Court
conditionally direct payment of fees to counsel when and if the Commissioner determined that Plaintiff
had no pre‐existing debt owing to the United States. DN 18, p. 3.6
Notwithstanding the order directing payment to Plaintiff (DN 18), the United States deposited
the EAJA fee into the escrow account of counsel’s law firm.
While it is debatable whether counsel has any legitimate hold on Plaintiff’s EAJA award, it is a
moot point as counsel has agreed to refund it to Plaintiff.
Order
Therefore, pursuant to 42 U.S.C. § 405(b), the Court hereby GRANTS Plaintiff’s counsel’s motion
and amended motion (DN 19 and 20) and AWARDS attorney fees in the amount of $5,176.50. Counsel
shall REIMBURSE Plaintiff the $2,137.50 that this Court previously awarded Plaintiff pursuant to the
Equal Access to Justice Act.
September 29, 2014
6
Subsequently, in Shirley v. Commissioner, Civil Action No. 1:13‐CV‐00058‐TBR, Shirley’s counsel apparently
successfully negotiated the Commissioner’s agreement to the type of court‐directed conditional payment scheme
that it previously opposed, and the district judge signed the agreed order directing the EAJA award accordingly (DN
25). The Court is presently utilizing the form of the agreed order in Shirley in all cases in which EAJA fees are
awarded.
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