Social Security Law Center, LLC v. Social Security Administration
Filing
23
OPINION AND ORDER by Chief Judge Gregory K Frizzell (Re: 2 PETITION for Writ of Mandamus (paid $350 filing fee; receipt number 10850000000000746178) ) (hbo, Dpty Clk)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
SOCIAL SECURITY LAW CENTER, LLC,
Plaintiff,
v.
MICHAEL ASTRUE, Commissioner
Social Security Administration
Defendant.
)
)
)
)
)
)
)
)
)
)
Case No. 10-cv-535-GKF-PJC
OPINION AND ORDER
This matter comes before the court upon Social Security Law Center (SSLC)’s Petition
for Writ of Mandamus. (Doc. ##2, 3). SSLC petitions for a writ of mandamus compelling the
Social Security Administration (SSA) to approve a fee agreement between SSLC and claimant
Scott Drummond. For the reasons set forth below, the Petition is denied.
I.
Background
The Social Security Act provides two methods for attorneys representing claimants to
obtain a reasonable fee.
42 U.S.C. § 406(a)(1) (fee petition) & (a)(2) (fee agreements).
Attorneys may file a fee petition requesting a “reasonable fee” for services rendered. See 20
C.F.R. §§404.1720, 404.1725, 404.1730.
The SSA evaluates such petitions based on the
complexity of the case, the skill required, the time spent, and the results achieved for the
claimant. Id. § 404.1725(b)(1).
Alternatively, attorneys who represent claimants pursuant to a fee agreement must satisfy
three statutory prerequisites: (1) the agreement must be submitted in writing to the
Commissioner prior to the Commissioner’s decision regarding the claim; (2) the fee specified
must not exceed the lesser of 25% of past-due benefits or $6,000;1 and (3) the Commissioner’s
decision is favorable to the claimant. 42 U.S.C. § 406(a)(2)(A). Once the three prerequisites are
satisfied, the Commissioner “shall approve that agreement at the time of the favorable
determination.” Id. The amount paid can be reduced if the “fee is clearly excessive for services
rendered.” Id. § 406(a)(3)(A).
The undisputed facts are:
1.
SSLC, through its representative Don Baker, represented claimant Scott
Drummond pursuant to a fee agreement, signed by both parties and filed at the
SSA on April 22, 2009. (Doc. ##20 at 1, 21 at 1).
2.
The fee specified was within the statutory limits. (Doc. #20 at 1).
3.
On September 17, 2009, Baker informed SSA that he was withdrawing from the
case. (Doc. #21 at 1).
4.
Claimant proceeded pro se, attending a December 29, 2009 ALJ hearing without
representation, and the ALJ issued a favorable decision on May 24, 2010. (Doc.
##20 at 1; 21 at 1).
5.
On July 26, 2010, Baker requested the fee agreement be approved. (Doc. #21 at
2).
6.
SSA told Baker he would have to file a fee petition to obtain any payment
because he withdrew before the SSA disability benefit determination was made.
(Doc. ##20 at 1, 21 at 2).
7.
That same day, the ALJ disapproved the fee agreement for the same reason.
(Doc. #3 at 10) (citing HALLEX I-1-2-12B).
8.
The ALJ informed Baker that he could request review of the decision to not
approve the fee agreement. (Doc. #21 at 2).
9.
Baker did not request review of the decision nor did he file a fee petition. (Doc.
#21 at 2).
10.
Baker instead filed the instant Petition for Writ of Mandamus. (Doc. ##2, 3).
1
The statute provides a $4,000 cap, but allows SSA to increase the maximum dollar amount
limit. 42 U.S.C. § 406(a)(2)(A) (permitting increases); 74 Fed. Reg. 6080–02 (Feb. 4, 2009)
(increasing the limit to $6,000, effective June 22, 2009).
-2-
II.
Discussion
Mandamus is an extraordinary remedy that applies only if Petitioner “has exhausted all
other avenues of relief and only if the defendant owes him a clear nondiscretionary duty.”
Heckler v. Ringer, 466 U.S. 602, 616 (1983). Petitioner carries the burden to show that its “right
to issuance of the writ is clear and indisputable.” Mallard v. U.S. Dist. Ct. for the S. Dist. of
Iowa, 490 U.S. 296, 309 (1989). Here, Petitioner did not exhaust all other avenues of relief.
The court is sympathetic to Petitioner’s argument. The SSA conflates the two processes
for attorney fee claims. The statutory requirements for fee agreement approval seemingly do not
exclude withdrawn or replaced counsel. And the SSA interpretation of that statue may be
contrary to law, although the court need not decide the issue here. SSA has previously approved
fee agreements concerning firms that were replaced midway through the proceedings. See
Binder & Binder, P.C. v. Barnhart, 281 F. Supp. 2d 574, 576 (E.D.N.Y. 2003) (noting SSA
approval of fee agreement with firm discharged by claimant before favorable determination),
vacated by 399 F.3d 128 (2d Cir. 2005). Why SSA chose not to approve the fee agreement here,
and then subsequently modify the amount to account for the withdrawn representation is not
clear.
However, mandamus remains an extraordinary remedy, and Baker failed to pursue all
available alternative avenues to achieve Petitioner’s ultimate goal:
payment for services
rendered. Baker failed to pursue the option of filing a fee petition despite SSA repeatedly
informing Baker they would consider the petition. (Doc. #21 at 2). Petitioner failed to satisfy its
“burden of showing that the fee petition alternative was either unavailable or inadequate.”
Power v. Barnhart, 292 F.3d 781, 786 (D.C. Cir. 2002). In Power, the D.C. Circuit addressed a
very similar situation:
-3-
[Petitioner] argues that, regardless of whether he would receive less money
through petition than agreement, the avenue of petition is inadequate because the
right he seeks to vindicate is approval of the fee agreement and not payment of
the fee. This argument, however, misconstrues both § 406(a) and the nature of
mandamus relief. If the SSA does owe any duty to Power under § 406(a), it is a
duty to pay him a fee for his services out of the benefits that he recovered for the
claimant. The petition and agreement procedures are merely alternative means to
that end. Indeed, were we to define the means to the end as the end itself, we
would simply write the third prong out of the mandamus test. The point of that
prong is to ensure that where there are alternative means of vindicating a statutory
right, a plaintiff's preference for one over another is insufficient to warrant a grant
of the extraordinary writ.
292 F.3d at 787; see also Cordoba v. Massanari, 256 F.3d 1044, 1047 (10th Cir. 2001) (denying
mandamus because Cordoba failed to file fee petition after SSA disapproved his fee agreement).
For the same reasons, the Petition here is denied.2
WHEREFORE, the Petition for Writ of Mandamus (Doc. ##2, 3) is denied.
DATED this 3rd day of October, 2012.
2
Petitioner also did not request review of the decision disapproving the fee agreement. Whether
20 C.F.R. § 404.1720(d) provided the proper review mechanism is disputed, but Petitioner’s
failure to pursue the agency’s offer to review the decision is undisputed. (Doc. #22 at 2).
Because Petitioner did not avail himself of the fee petition avenue, the court need not determine
whether failure to pursue review of the ALJ decision disapproving the fee agreement would
independently bar mandamus relief.
-4-
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?