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Evans v. Berryhill

United States District Court, S.D. Alabama, Northern Division

April 19, 2017

RICHARD EVANS, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          ORDER

          BERT W. MILLING, JR. UNITED STATES MAGISTRATE JUDGE

         This action is before the Court on the motion for fees under 42 U.S.C. § 406(b) (Doc. 27) filed by William T. Coplin, Jr., Esq., counsel for Plaintiff Richard Evans (“Plaintiff”). Defendant Acting Commissioner of Social Security (“the Commissioner”) has filed no response to the motion. Upon consideration, the Court finds that the § 406(b) motion (Doc. 25) is due to be GRANTED.[1]

         I. Background

         On June 30, 2014, Plaintiff, at all times represented by Coplin, commenced this action for judicial review of an unfavorable final decision of the Commissioner under 42 U.S.C. §§ 405(g) and 1383(c)(3). (Doc. 1). In accordance with the Court's scheduling order (Doc. 3), the Commissioner filed her answer to the complaint (Doc. 9) and the record of the administrative proceedings (Doc. 10), and Plaintiff filed his brief identifying errors in the Commissioner's final decision (Docs. 11, 12). In response to Plaintiff's brief, the Commissioner filed her brief in support of the final decision (Doc. 15). The undersigned, by Memorandum Opinion and Order, reversed the decision of the Commissioner and remanded this action for further proceedings (Doc. 21) and Judgment was entered accordingly on March 12, 2015. (Doc. 22).

         Plaintiff subsequently filed a motion for attorney's fees under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d)[2] (Doc. 23), which the Court granted on May 8, 2015, awarding Plaintiff $2, 066.42 in attorney's fees and $492.96 in court costs and litigation expenses (Doc. 25). Following remand to the Social Security Administration (SSA), an Administrative Law Judge (“ALJ”) issued a favorable decision for the Plaintiff on December 14, 2016. (Doc. 27-2). A notice of award of past-due benefits was issued March 20, 2017, which also advised that $17, 341.50, representing 25% of the total past due benefits, was being withheld to pay an approved representative's fee. (Doc. 27-3). Coplin filed the present § 406(b) motion on March 29, 2017, requesting that the Court award him a fee in the amount of $8, 845.12. (Doc. 27).

         II. Analysis

[U]nder 42 U.S.C. § 406(b), a court entering judgment in favor of a Social Security benefits claimant 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 v. Barnhart, 535 U.S. 789, 807, 122 S.Ct. 1817, 1828, 152 L.Ed.2d 996 (2002). For example, courts may reduce the requested fee if the representation has been substandard, if the attorney has been responsible for delay, or if the benefits are large in comparison to the amount of time the attorney spent on the case. Id. at 808, 122 S.Ct. at 1828. A § 406(b) fee is paid by the claimant out of the past-due benefits awarded. 42 U.S.C. § 406(b)(1)(A).

Jackson v. Comm'r of Soc. Sec., 601 F.3d 1268, 1271 (11th Cir. 2010).[3] “42 U.S.C. § 406(b) authorizes an award of attorney's fees where[, as here, ] the district court remands the case to the Commissioner of Social Security for further proceedings, and the Commissioner on remand awards the claimant past-due benefits.” Bergen v. Comm'r of Soc. Sec., 454 F.3d 1273, 1277 (11th Cir. 2006) (per curiam).

         a. Timeliness

         “Fed. R. Civ. P. 54(d)(2) applies to a § 406(b) attorney's fee claim.” Id. Rule 54(d)(2)(B)(i) provides that, “[u]nless a statute or a court order provides otherwise, [a] motion[ for attorney's fees] must be filed no later than 14 days after the entry of judgment.” Because Coplin's § 406(b) motion was filed within 14 days of the date of the Plaintiff's notice of award, the motion is timely.

         b. Reasonableness

In Gisbrecht v. Barnhart, the Supreme Court considered 42 U.S.C. § 406(b) and clarified its impact on the district court's role in awarding a reasonable fee following a favorable claim for Social Security benefits. See 535 U.S. 789, 807, 122 S.Ct. 1817, 1828, 152 L.Ed.2d 996 (2002). Although § 406(b)(1)(A) gives district courts the power to “determine and allow as part of its judgment a reasonable fee” following a favorable claim for Social Security benefits, 42 U.S.C. § 406(b)(1)(A), it does not empower them to ignore the fee agreements entered into by parties when determining what a reasonable fee would be, see Gisbrecht, 535 U.S. at 807, 122 S.Ct. at 1828 (concluding that “ § 406(b) does not displace contingent-fee agreements as the primary means by which fees are set”). Instead, courts must look to the agreement made by the parties and independently review whether the resulting fee is reasonable under the circumstances. Id. Accordingly, [a court] must look to the fee agreement made by [a claimant] and his attorney.

Keller v. Comm'r of Soc. Sec., 759 F.3d 1282, 1284 (11th Cir. 2014).

         Section 406(b)(1)(A) “prohibits fee agreements from providing for a fee ‘in excess of 25 percent of the total of the past-due benefits to which the claimant is entitled.' ” Id. at 1285 (quoting 42 U.S.C. § 406(b)(1)(A)). However “the agreement, not the statute, provides the ‘primary means by which fees are set.' ” Id. (quoting Gisbrecht, 535 U.S. at 807). In retaining Coplin to represent him, Plaintiff entered into ...


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