Myers v. Commissioner of Social Security
REPORT AND RECOMMENDATIONS: 1) 18 MOTION for Allowance of Attorney Fees filed by Plaintiff's counsel be granted; 2) Plaintiff's counsel be directed to remit to Plaintiff $8,900.00, which is the total amount of attorney fees counsel has received under the Equal Access to Justice Act; and 3) The case remain terminated on the Court's docket. Objections to R&R due by 1/20/2017. Signed by Magistrate Judge Sharon L. Ovington on 1/6/17. (mcm)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
Case No. 3:12cv00192
CAROLYN W. COLVIN,
Commissioner of the Social
District Judge Walter Herbert Rice
Magistrate Judge Sharon L. Ovington
REPORT AND RECOMMENDATIONS1
This case is before the Court upon a Motion For Allowance Of Attorney Fees filed by
Plaintiff’s counsel (Doc. #18), the Commissioner’s Response (Doc. #20), Plaintiff’s counsel’s
Reply (Doc. #21), and the record as a whole. Plaintiff’s counsel seeks an award of $27,000.00
in attorney fees under 42 U.S.C. § 406(b)(1). The Commissioner acknowledges that the
requested award of attorney fees would not constitute a windfall for Plaintiff’s counsel. The
Commissioner asserts, however, that the present Motion was not filed within a reasonable time
after Plaintiff received his Notice of Award letter from the Social Security Administration.
The Commissioner, therefore, “defers to the Court’s judgment concerning what fee to award
….” (Doc. # 20, PageID# 219).
Attached hereto is a NOTICE to the parties regarding objections to this Report and Recommendations.
Section 406(b)(1)(A) permits a court to “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 ….” Given this, many
attorneys agree to represent social security claimants under the terms of a contingency
agreement that permits attorney fees up to the full 25 percent statutory maximum. This type of
contingency agreement is permissible when the district court determines that the fee award is
reasonable. Gisbrecht v. Barnhart, 535 U.S. 789, 808-09 (2002) (“We hold that § 406(b) does
not displace contingent-fee agreements within the statutory ceiling; instead, § 406(b) instructs
courts to review for reasonableness fees yielded by those agreements.”).
Plaintiff and his attorney entered into an agreement setting the amount payable as
attorney fees at “25% of any lump sum award for past-due benefits payable to [Plaintiff] and
Client’s dependents ….” (Doc. #18, PageID# 176). The Commissioner does not contend that
the amount of the sought-after award, $27,000.00, would be a windfall to Plaintiff’s counsel in
the present case. And, upon review of Plaintiff’s counsel’s Motion and attached documents,
Plaintiff correctly contends that this fee amount is reasonable based on certain prior cases. See
Doc. #18, PageID#s 165-66 (and cases discussed therein).
The point of contention between the parties concerns the long passage of time between
September 2014, when Plaintiff received his Notice of Award letter from the Social Security
Administration, and December 21, 2016, when Plaintiff’s counsel filed his present Motion.
The Commissioner explains that counsel’s filing “two years after the Notice of Award letter
does not appear to be within a reasonable time by any standard. Equitable tolling of the due
date usually recognizes a short period of weeks or months, not years, after the Notice of Award
letter is received.” (Doc. #20, PageID# 219).
Before delving into this controversy, it is worth noting one aside: Effective
January 1, 2016, Rule 54.2(b) of the S.D. Ohio Civil Rules imposes a specific time
limit on counsel seeking fees under §406b). It provides:
An attorney seeking fees awarded under § 206(b) of the Social Security
Act, 42 U.S.C. § 406(b), must file a motion for fees no later than forty-five
days after entry of judgment or the date shown on the face of the social
security certificate award (notice of award), whichever is later.
This Rule was not in effect on the date, September 8, 2014, shown on the face of
Plaintiff’s Notice of Award. (Doc. #18, PageID# 177). At that time, counsel had no notice of
Rule 54.2(b)’s time limit. It would therefore be unduly prejudicial to apply Rule 54.2(b)’s 45day limit against Plaintiff’s counsel.
How long did Plaintiff’s counsel have to file his 406(b) Motion after he received the
Notice of Award letter? The law and historical explanations cogently set forth in McCluskey v.
Comm’r of Soc. Sec., 1:12cv00617, 2016 WL 6836353, at *3 (S.D. Ohio, Nov. 18, 2016)
(Litkovitz, M.J.) and Short v. Comm’r of Soc. Sec., No. 1:12cv00574, 2015 WL 4465189, at *1
(S.D. Ohio, 2015) (Bowman, M.J.), guide the analysis.
The time-limit answer potentially arises from Fed. R. Civ. P. 54(d), which requires
attorney fee motions to be filed “no later than 14 days after the entry of judgment” unless a
court order or statute provides otherwise. Fed. R. Civ. P. 54(d)(2)(B). Strict application of this
Rule in the present circumstances would mean counsel’s § 406(b) Motion is untimely.
Judgment was entered in this case on September 13, 2013. More than 45 days later, Plaintiff’s
counsel filed his present Motion (in November 2016).
Such delays often arise for attorneys seeking to recover fees under 406(b) due to “the
practical difficulty and inherent unfairness of applying Fed. R. Civ. P. 54(d)(2)’s filing
deadline in disability cases that were remanded for further administrative proceedings.1 While
the 14-day filing deadline under Rule 54(d)(2) runs from the entry of judgment, the amount of
any past-due benefits from which an attorney fee may be calculated is not known at the time of
judgment when a disability appeal is remanded by the court for further administrative
proceedings.” McCluskey, 2016 WL 6836353, at *3 (footnote added) (Litkovitz, M.J.; R&R
adopted 2016 WL 7188586 (S.D. Ohio, Dec. 12, 2016). This problem has led judges in this
district to apply “the principles of equitable tolling to determine whether a § 406(b) attorney
fee petition filed past the time limit set forth in Rule 54(d)(2) was timely.” Id. The equitabletolling principles boil down to five considerations: (1) the movant’s lack of notice of the filing
requirement; (2) the movant’s lack of constructive knowledge of the filing requirement; (3) the
diligence movant exercised in pursuing his or her rights; (4) the absence of prejudice to the
non-movant; and (5) the movant’s reasonableness in remaining ignorant of the legal
requirement for filing his or her motion. See Short, 2015 WL 4465189, *4 (and cases cited
The circumstances Plaintiff’s counsel describes demonstrate that he was reasonably
diligent in processing the administrative matters after receiving the Notice of Award letter such
that he filed his present Motion within a reasonable time. After receiving Plaintiff’s Notice of
Award letter, counsel still needed to pursue Notices Of Award for two auxiliary
citing Lasley v. Comm’r of Soc. Sec., No. 1:10cv00394, 2013 WL 3900096 (S.D. Ohio, July 2013) (R&R
adopted, 2013 WL 6147841 (S.D. Ohio Nov. 22, 2013)), aff'd, 771 F.3d 308 (6th Cir. 2014).
beneficiaries—Plaintiff’s minor dependents. Counsel received the Notice of Award for one
dependent on February 26, 2015 and for the other on August 9, 2015. The work performed by
counsel or his office pursuing these notices included multiple inquiries by phone or fax with
the Court Case Unit, Mod 13, and the Picqua, Ohio District Office. The affidavit of attorney
Michael Rake, certain Time Entries, and the correspondences attached to Plaintiff’s Counsel’s
Reply verify the performance of this work by counsel. (Doc. #21, PageID #s 226-46).
Furthermore, Plaintiff and his two dependents benefitted from the additional work Plaintiff’s
counsel had performed and the success he had obtained in securing the Notices of Award for
Plaintiff’s two minor dependents. At least some of the passage of time during this period was
doubtlessly due to the large number of matters pending before the Social Security
Administration and the enormous amount of work it dedicates to these matters.
In addition, some delay occurred in the fall of 2016, due to the need for the Social
Security Administration’s Office of General Counsel to consider whether to challenge the
reasonableness of the §406(b) Motion Plaintiff’s counsel intended to file. At the Office of
General Counsel’s request, Plaintiff’s counsel sent them a copy of his § 406(b) Motion. On or
about November 15, 2016, the Office of General Counsel responded to the counsel’s intended
§ 406(b) Motion, expressing concern over its timeliness. (Doc. #21, PageID #259). Plaintiff’s
counsel diligently filed his § 406(b) Motion two days later, on November 17, 2016.
This case, moreover, presents circumstances and activities by Plaintiff’s counsel that
distinguish it from the lack of explanation for the delay in filing that occurred in McCluskey,
2016 WL 6836353, at *4 (“Nor has counsel offered any reason for waiting until approximately
15 months after the Notice of Award was issued and seven months after Rule 54.2(b) was
enacted to request a § 406(b) fee.”) and in Short, 2013 WL 4465189, *5 (“Despite that express
warning and admitted receipt of the Notice of Award in June 2014, counsel offers no rationale
for waiting nearly six months to file her § 406(b) motion.”). Thus, although the delays were
found to be unreasonable in McCluskey and Short, the diligent efforts by counsel in this case,
and the lack of prejudice to the government, warrant the conclusion that his delay in filing was
Accordingly, in light of the unique circumstances presented in this case, the delay in
counsel’s filing his § 406(b) Motion was reasonable and his Motion is therefore well taken.
IT IS THEREFORE RECOMMENDED THAT:
The Motion for Allowance of Attorney Fees filed by Plaintiff’s counsel
(Doc. #18) be granted and that counsel be awarded $27,000.00 in attorney
fees under 42 U.S.C. § 406(b);
Plaintiff’s counsel be directed to remit to Plaintiff $8,900.00, which is the
total amount of attorney fees counsel has received under the Equal Access
to Justice Act, 28 U.S.C. § 2412(d); and
The case remain terminated on the Court’s docket.
January 6, 2017
s/Sharon L. Ovington
Sharon L. Ovington
United States Magistrate Judge
NOTICE REGARDING OBJECTIONS
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written
objections to the proposed findings and recommendations within fourteen days after being
served with this Report and Recommendations. Such objections shall specify the portions of
the Report objected to and shall be accompanied by a memorandum of law in support of the
objections. If the Report and Recommendations are based in whole or in part upon matters
occurring of record at an oral hearing, the objecting party shall promptly arrange for the
transcription of the record, or such portions of it as all parties may agree upon or the Magistrate
Judge deems sufficient, unless the assigned District Judge otherwise directs. A party may
respond to another party’s objections within fourteen days after being served with a copy
Failure to make objections in accordance with this procedure may forfeit rights on
appeal. See Thomas v. Arn, 474 U.S. 140 (1985); see also United States v. Walters, 638 F.2d
947 (6th Cir. 1981).
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