Wysling v. Astrue

Filing 28

ORDER granting 26 amended motion for attorney fees. Signed on 8/10/11 by Magistrate Judge John T. Maughmer. (Alexander, Pam)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
ST. JOSEPH DIVISION
BRADLEY J. WYSLING,
Plaintiffs,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF
SOCIAL SECURITY,
Defendant.

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Case No. 08-6014-CV-SJ-JTM

ORDER
Pending before the Court is the AMENDED MOTION FOR AUTHORIZATION OF ATTORNEY’S
FEE PURSUANT TO 42 U.S.C. § 406(b) [Doc. 26] filed by plaintiff Bradley J. Wysling
(“Wysling”) and his attorney, John L. Vohs. The underlying case involved an appeal to this
Court by Wysling challenging a denial of social security benefits. On June 17, 2009, the Court
reversed and remanded the case back to the Social Security Administration pursuant to 42 U.S.C.
§ 406(g), sentence four. On remand, Wysling was awarded benefits, including $46,303.00 in
past-due benefits.
Social security claimants and their attorneys are presented with various avenues for
ascertaining and awarding attorney’s fees. Typically, claimants and attorneys enter into
contingent fee agreements. In addition to such agreements, the social security law itself provides
rules regarding attorneys fees. With regard to legal representation during the administrative
portion of a social security claim, 42 U.S.C. § 406(a) provides that an attorney may be awarded
the contingent fee agreed upon between a claim and an attorney so long as (1) the claimant
received a favorable determination, and (2) the fee payable under the agreement does not exceed
the lesser of $4,000 or 25% of any award of past-due benefits. 42 U.S.C. § 406(a)(A)(2)(i)-(iii).

With regard to legal representation during the federal district portion of a social security
claim, the law provides:
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). However, complicating the determination of attorneys fees for federal
district court representation is that attorneys fees are also generally recoverable by prevailing
social security claimants in federal court under the Equal Access to Justice Act, 28 U.S.C. §
2412. Parties may seek and receive fees under both the SSA and the EAJA. See, e.g., Watford v.
Heckler, 765 F.2d 1562, 1562 (11th Cir.1985). See also Gisbrecht v. Barnhart, 535 U.S. 789,
794-95 (2002). However, to avoid a double recovery of attorney’s fees, a social security
claimant’s attorney who is awarded attorney’s fees under both § 406(b) and EAJA must refund
the lesser amount to his client. Id. at 796. In this case, Vohs, though, did not seek an award of
EAJA fees.
As previously noted, Wysling was awarded $46,303.00 in past-due benefits by the Social
Security Administration. Accordingly, pursuant to the social security law, the maximum fee that
can be collected by Vohs is $11,575.75 (25% of the past-due benefits). Prior to filing the
pending motion before this Court, the Social Security Administration awarded Vohs $6,000.00 in
attorneys fees pursuant to 42 U.S.C. § 406(a) for Vohs representation of Wysling during the
administrative stage of the social security case. In the pending motion, Vohs seeks an order from
this Court authorizing a payment of $5,575.75 (the $11,575.75 maximum award less the
$6,000.00 already paid) under 42 U.S.C. § 406(b)

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In support of this award, Vohs has provided an affidavit to the Court detailing 39 hours
of work spent representing Wysling before this Court (time spent representing Wysling during
the administrative stages has been excluded). Vohs also notes that the award he seeks would
result in an hourly attorney rate of approximately $143.00, below his regular hourly rate of
$150.00 for handling social security cases. In addition, Vohs points out that the fee sought
herein pursuant to 42 U.S.C. § 406(b) is less the amount he could have been awarded under
EAJA
In response, the Commissioner of Social Security does not dispute any of the above
arguments nor does the Commissioner necessarily object to amount of time worked claimed by
Vohs nor the resulting hourly rate of $143.00. However, the Commissioner does argue that
Vohs has created a “conflict of interest” between himself and Wysling. Specifically, the
Commissioner seemingly argues that Vohs’ failure to seek EAJA (which would have been paid
in addition to any benefits awarded to Wysling) and instead only to seek attorney’s fees under
Section 406(b) (which are paid out of Wysling’s benefits), Vohs should receive some lesser
amount for fees. The Court is sympathetic to the Commissioner’s argument; however, the
anomaly that exists in this case is made possible by the statutory scheme presently in place.
Under Section 406(b), the Court role is to determine “a reasonable fee for [the attorney’s]
representation.” While the term “reasonable,” perhaps, affords the Court a certain flexibility, the
Court is not prepared to “lower” an otherwise reasonable award under Section 406(b) simply
because the claimant’s attorney failed to seek EAJA fees.1

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This is not to say that the Court wishes to encourage the practice of eschewing
EAJA fees in favor of only seeking an award under Section 406(b).
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For the foregoing reasons and in light of the agreement between the parties that the hours
and hourly rate claimed by Vohs are reasonable, it is
ORDERED that the AMENDED MOTION FOR AUTHORIZATION OF ATTORNEY’S FEE
PURSUANT TO 42 U.S.C. § 406(b), filed March 19, 2011 [Doc. 26] is GRANTED. The Court
awards attorneys fees to Vohs pursuant to 42 U.S.C. § 406(b) in the amount of $5,575.75 and
directs the Social Security Administration, which has withheld said amount from payment to
Wysling, to release those funds to Vohs.

/s/ John T. Maughmer

JOHN T. MAUGHMER
U. S. MAGISTRATE JUDGE

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