Quinton v. Social Security Administration

Filing 31

OPINION AND ORDER by Magistrate Judge Steven P. Shreder GRANTING 28 Motion for Attorney Fees under 42 U.S.C. § 406(b) by Sequoyah D. Quinton. (ndd, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA
SEQUOYAH D. QUINTON,
Plaintiff,
v.
COMMISSIONER of the Social
Security Administration,
Defendant.

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Case No. CIV-15-466-SPS

OPINION AND ORDER AWARDING
ATTORNEY’S FEES UNDER 42 U.S.C. § 406(b)
The Plaintiff appealed the decision of the Commissioner of the Social Security
Administration denying his request for benefits. The Court reversed the Commissioner’s
decision and remanded the case for further proceedings. On remand, the Administrative
Law Judge (“ALJ”) found that the Plaintiff was disabled and awarded him over
$142,000.00 in past-due benefits. The Plaintiff’s attorney now seeks an award of fees
pursuant to 42 U.S.C. § 406(b)(1). For the reasons set forth below, the Court finds that the
Plaintiff’s Attorney’s Motion for an Award of Attorney Fees Under 42 U.S.C. § 406(b)
[Docket No. 28] should be granted and that Plaintiff’s attorney should be awarded
$12,000.00 in attorney’s fees.
The Court must initially determine if the motion at issue is timely. Section 406(b)
does not address when a motion for attorneys’ fees should be filed, so the Tenth Circuit
has instructed that “the best option . . . is for counsel to employ Federal Rule of Civil
Procedure 60(b)(6) in seeking a § 406(b)(1) fee award.” McGraw v. Barnhart, 450 F.3d

493, 505 (10th Cir. 2006). Thus, a Section 406(b) motion for attorneys’ fees must be filed
within a reasonable time of receipt of the notice of award. See generally Fed. R. Civ. P.
60(c)(1) (“A motion under Rule 60(b) must be made within a reasonable time[.]”). In this
district, “a reasonable time” means within thirty days of issuance of the notice of award
unless there is good reason for a lengthier delay. See, e. g., Harbert v. Astrue, 2010 WL
3238958 at *1 n. 4 (E.D. Okla. Aug. 16, 2010) (slip op.) (“The Court notes here that while
no explanation is needed for a Section 406(b)(1) motion filed within thirty days of issuance
of the notice of appeal, lengthier delays will henceforth be closely scrutinized for
reasonableness, including the reasonableness of efforts made by appellate attorneys to
obtain a copy of any notice of award issued to separate agency counsel.”). The motion for
attorneys’ fees in this case was filed on January 7, 2019, over seven months after the Notice
of Award was issued on May 28, 2018, and when he received it on June 1, 2019. See
Docket Nos. 28, Ex. 1 & 30, Ex. 1. In response to this Court’s request for supplemental
documentation as to the delay, counsel insists that he incurred no delay because he filed
the present motion within twenty days after instruction from the “Baltimore Payment
Center,” and he is “not aware of a specific time in which an application for 406(b) fees are
to be filed.” See Docket No. 30, p. 2, ¶¶ 8-11. The Court is not entirely satisfied with this
explanation in light of existing case law on this subject as cited above, but inasmuch as
there are no timeliness objections by the Commissioner, the Court declines to find that the
motion was not filed within a reasonable time under Fed. R. Civ. P. 60(b)(6). The Court
therefore finds that the motion for attorneys’ fees under Section 406(b) is timely.

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When “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 25% does not include any fee awarded by the
Commissioner for representation in administrative proceedings pursuant to 42 U.S.C.
§ 406(a). Wrenn v. Astrue, 525 F.3d 931, 937 (10th Cir. 2008) (“Based on the plain
language and statutory structure found in § 406, the 25% limitation on fees for court
representation found in § 406(b) is not itself limited by the amount of fees awarded by the
Commissioner.”). The amount requested in this case is $12,000.00, approximately 8.4%
of the Plaintiff’s past-due benefits in accordance with the applicable attorney fee
agreement. See Docket No. 28, Ex. 2. The Court therefore need only determine if this
amount is reasonable for the work performed in this case. Gisbrecht v. Barnhart, 535 U.S.
789, 807 (2002) (“[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 in particular cases.”).
Factors to consider include: (i) the character of the representation and results achieved,
(ii) whether any dilatory conduct might allow attorneys to “profit from the accumulation
of benefits during the pendency of the case in court[,]” and (iii) whether “the benefits are
[so] large in comparison to the amount of time counsel spent on the case” that a windfall
results. Id. at 808, citing McGuire v. Sullivan, 873 F.2d 974, 983 (7th Cir. 1989) (reducing
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fees for substandard work); Lewis v. Secretary of Health & Human Services, 707 F.2d 246,
249-50 (6th Cir. 1983) (same); Rodriguez v. Bowen, 865 F.2d 739, 746-47 (6th Cir. 1989)
(noting fees are appropriately reduced when undue delay increases past-due benefits or fee
is unconscionable in light of the work performed); Wells v. Sullivan, 907 F.2d 367, 372
(2nd Cir. 1990) (court should consider “whether the requested amount is so large as to be
a windfall to the attorney”). Contemporaneous billing records may be considered in
determining reasonableness. Gisbrecht, 535 U.S. at 808 (“[T]he court may require the
claimant’s attorney to submit, not as a basis for satellite litigation, but as an aid to the
court’s assessment of the reasonableness of the fee yielded by the fee agreement, a record
of the hours spent representing the claimant and a statement of the lawyer’s normal hourly
billing charge for noncontingent-fee cases.”), citing Rodriguez, 865 F.2d at 741.
Based on the factors enunciated in Gisbrecht, the Court concludes that $12,000.00
in attorney’s fees is reasonable for the work done in this case. First, the attorney ably
represented the Plaintiff in his appeal to this Court and obtained excellent results on his
behalf, i. e., a reversal of the Commissioner’s decision denying benefits and remand for
further consideration. The Plaintiff’s success on appeal enabled him not only to prevail in
his quest for social security benefits, but also to obtain $4,400.00 in attorney’s fees as the
prevailing party on appeal under the Equal Access to Justice Act, 28 U.S.C. § 2412(d), see
Docket No. 27, which will essentially reduce any amount awarded from his past-due
benefits pursuant to Section 406(b). Second, there is no evidence that the Plaintiff’s
attorneys caused any unnecessary delay in these proceedings. Third, the requested fee does
not result in any windfall to the Plaintiff’s attorney, who spent a total of 23.75 hours on
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this appeal. See Docket No. 25, Ex. 1. This would equate to a rate of $505.26 per hour at
most, which is hardly excessive given that the fee was contingent and the risk of loss was
not negligible. The Court therefore concludes that the requested fee of $12,000.00 is
reasonable within the guidelines set by Gisbrecht.
It appears that the Commissioner retains sufficient funds to pay the $12,000.00
awarded to the Attorney herein under Section 406(b)(1). If, however, for any reason the
Commissioner may not have sufficient funds on hand to satisfy the $12,000.00 awarded
herein, the Plaintiff’s attorney will have to recover the difference from the Plaintiff himself,
not from his past-due benefits. See Wrenn, 525 F.3d at 933 (“If the amount withheld by
the Commissioner is insufficient to satisfy the amount of fees determined reasonable by
the court, the attorney must look to the claimant, not the past-due benefits, to recover the
difference.”). Furthermore, because the $12,000.00 awarded herein pursuant to Section
406(b)(1) exceeds the $4,400.00 previously awarded to the Plaintiff under the EAJA, the
Plaintiff’s attorney must refund the latter amount to the Plaintiff. See Weakley v. Bowen,
803 F.2d 575, 580 (10th Cir.1986).
Accordingly, the Plaintiff’s Attorney’s Motion for an Award of Attorney Fees
Under 42 U.S.C. § 406(b) [Docket No. 28] is hereby GRANTED. The Court approves an
award of attorney fees in the amount of $12,000.00 to the Plaintiff’s attorney pursuant to
42 U.S.C. § 406(b)(1), and directs the Commissioner to pay to the Plaintiff’s attorney the
balance of any past-due benefits in her possession up to said amount. The Plaintiff’s
attorney shall thereupon refund to the Plaintiff the full amount previously awarded under
the EAJA.
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IT IS SO ORDERED this 7th day of February, 2019.

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