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Bell v. Colvin

United States District Court, N.D. Iowa, Western Division

March 2, 2015

STEVEN M. BELL, Plaintiff,
CAROLYN W. COLVIN, Commissioner of Social Security, Defendant.


MARK W. BENNETT, District Judge.


This case is before me on plaintiff Steven M. Bell's (Bell) Motion For Award of Attorney Fees (docket no. 16), brought by his attorney, William Horneber (Horneber), filed on October 6, 2014. Horneber also filed a Motion For Award of Attorney Fees (Amended) (docket no. 17) on October 8, 2014. Horneber filed these motions for attorney's fees more than a year after the judgment was filed in this case.[1] Horneber's original motion for attorney's fees provides, "The Social Security Administration designated the sum of $18, 263.50 as and for payment of attorney fees ." Plaintiff's Motion for Attorney Fees at 1 (emphasis added). Horneber includes with this motion, as an exhibit, his itemized statements representing that he worked 49.65 hours on Bell's claim before this Court (docket no. 16-1). The amended motion indicates that, "The Social Security Administration designated the sum of $24, 787.25, as and for payment of attorney fees for Steven Mark Bell and his family." Plaintiff's Amended Motion for Attorney Fees at 1 (emphasis added). Both motions provide that Horneber "billed" $12, 744.01.

On October 22, 2014, the Commissioner filed her Response To Plaintiff's Motion For Attorney Fees Pursuant To Section 206(b) Of The Social Security Act, 42 U.S.C. § 406(b) (docket no. 19). In that response, the Commissioner confirms that Bell was awarded $99, 149.00 in past-due benefits, and the Social Security Administration (SSA) withheld 25% of that amount, or $24, 787.25, for attorney's fees. Defendant's Response at 2. The Commissioner notes that I "must independently determine whether an attorney fee in this amount is reasonable." Id. The Commissioner suggests that Bell's attorney, Horneber, has not shown the reasonableness of his requested fees on three bases: (1) Horneber failed to comply with Local Rule 54.1(b) and the Equal Access to Justice Act, 28 U.S.C. § 2412 (EAJA); (2) Horneber allegedly only seeks an award under 42 U.S.C. § 406(b), despite already receiving $6, 000.00 under 42 U.S.C. § 406(a), and it is not clear whether he is seeking an aggregated fee amount in excess of 25% of Bell's past-due benefits; and (3) the factors one weighs in determining the reasonableness of attorney's fees tip against Horneber's request.

In addition, the Commissioner points out that neither of Horneber's motions for attorney's fees indicate "which of these amounts [( i.e., the withheld $24, 787.25 or "billed" $12, 744.01)] [the plaintiff] is seeking or if he is seeking some other amount." Id. at 6. The Commissioner asserts that if Bell "is only seeking $12, 744.01, " under 42 U.S.C. § 406(b), or the amount Horneber "billed, " then the Commissioner "has no objection with regard to the aggregation of fees" under 42 U.S.C. §§ 406(a) and 406(b). Id. at 9. This is because the total amount of attorney's fees would be $18, 744.01 ( i.e., $12, 744.01 under § 406(b), plus $6, 000 under § 406(a)), which is less than 25% of Bell's past-due benefits withheld. Id . Conversely, if Horneber were awarded the full amount requested under § 406(b) ( i.e., $24, 787.25) in addition to the fee under § 406(a) ( i.e., $6, 000.00), then "the total amount will exceed the amount the agency has withheld for payment of attorney fees, " or 25% of Bell's past-due benefits. Id. at 7. That figure, according to the Commissioner, would equate to 31% of plaintiff's past-due disability benefits. Id. at 8.

Horneber filed a Reply To Defendant's Response (docket no. 21) on October 29, 2014. In his reply, Horneber vaguely suggests that he is entitled to an additional $18, 767.25 under 42 U.S.C. § 406(b), plus the $6, 000.00 under 42 U.S.C. § 406(a) that he already received for time spent before the Agency.[2] In support of his § 406(b) motion, Horneber attached, to the reply, two attorney's fee agreements, signed by Bell and Horneber. Both agreements indicate that Horneber would be entitled to a fee equal to twenty-five percent of Bell's past-due benefits, if Bell's claim was successful. Plaintiff's Reply at 5-7. The one agreement that is, according to Bell, relevant to this claim was signed on May 1, 2012. Id. at 7.

In making his claim for attorney's fees in the reply, albeit ambiguously, Horneber does not grapple with any of the Commissioner's objections in response to his request for attorney's fees. Nor does Horneber dispute the fact that he failed to file a motion for fees seeking reimbursement pursuant to the EAJA. At this time, Horneber is time barred from filing such a motion.[3] Instead of filing a motion under that Act, Horneber's motions ask that I award additional fees for the time he spent before this Court pursuant to 42 U.S.C. § 406(b). Although Bell's application for fees pursuant to 42 U.S.C. § 406(b) is untimely, [4] the Commissioner has not raised that objection, but instead, focuses on the untimeliness of Bell's application for attorney's fees under the EAJA and Local Rule 54.1(b).[5] Therefore, the pending issue before me is whether to award Horneber, who successfully represented Bell before this Court, attorney's fees under 42 U.S.C. § 406(b).[6] See Shepherd, 981 F.Supp. at 1190 (finding plaintiff's counsel's application for fees under § 406 was untimely, but issuing a ruling on the matter because the government failed to raise an objection, and awarding plaintiff's counsel fees at a reduced rate pursuant to § 406 because plaintiff's counsel failed to seek fees under the EAJA).


"Attorney fees in Social Security Cases are bifurcated into two categories: time before the Agency and time before the courts." Wallace, 2004 WL 883447, *1 (citing 42 U.S.C. § 406(a)-(b)). Section 406(a) governs administrative representation, and the Commissioner has exclusive jurisdiction to determine attorney's fees for services performed before the Agency. See 42 U.S.C. § 406(a)(2). By contrast, section 406(b) governs representation in Court where there is "a judgment favorable to a claimant, " and the Court may award "reasonable" fees for services performed before the Court . See 42 U.S.C. § 406(b)(1)(A). The Eighth Circuit Court of Appeals has clarified that an attorney is limited to a maximum of 25% of plaintiff's past-due benefits. Davis v. Bowen, 894 F.2d 271, 273 n.3 (8th Cir. 1989) ( per curiam ) ("We note that those circuits which have addressed the issue agree that the aggregate of fees awarded at the judicial and administrative levels may not exceed twenty-five percent of past due benefits.") (citations omitted).

Furthermore, "[a]fter successfully representing a claimant in a Social Security case, an attorney may seek an award of attorney fees [for time before the Court] under the EAJA or pursuant to 42 U.S.C. § 406(b), and sometimes an attorney seeks fees under both."[7] Wallace, 2004 WL 883447, *1. There is, however, a rather important distinction between these two types of fee awards: "Attorney fees awarded under the EAJA are paid by the Social Security Administration, whereas fees awarded under 42 U.S.C. § 406(b), part of the Social Security Act, are paid from the claimant's past-due benefits." Bear v. Astrue, 544 F.Supp.2d 881, 883 (D. Neb. 2008). "In short, filing for EAJA fees saves the plaintiff money." Illiceto v. Secretary of Dept. of Health and Human Services, No. CV-83-2160, 1990 WL 186254, *1 (E.D.N.Y. Nov. 14, 1990). As noted above, Horneber failed to seek fees under the EAJA, and, as an alternative, Horneber now seeks to recover fees pursuant to 42 U.S.C. § 406(b).

Courts are permitted, under the Social Security Act, 42 U.S.C. § 406(b)(1), to award a successful claimant's counsel fees for work performed before the Court in a "reasonable" amount not to exceed "25 percent of the total of the past-due benefits to which the claimant is entitled by reason of [a favorable] judgment[.]" 42 U.S.C. § 406(b)(1)(A). Moreover, as I have explained elsewhere, "[T]he touchstone for determining attorney fees [pursuant to 42 U.S.C. § 406(b)] is reasonableness, with an absolute cap on fees set at twenty-five percent of a claimant's past due benefits." Lindstrom, 2012 WL 860322, *2 (emphasis added); see also Wellenstein, 2011 WL 4963856, *2. I turn to the United States Supreme Court's decision in Gisbrecht v. Barnhart, 535 U.S. 789, 804-05 (2002), which addresses the meaning of the term "reasonable fee" and how contingent-fee agreements are enforceable and unenforceable under 42 U.S.C. § 406.

Whether a contingency fee agreement is present in a social security case is relevant, but, of course, there is no presumption that such an agreed-upon fee is reasonable. Id. at 807 n.17 (2002). "Rather, § 406(b) calls for court review of such arrangements as an independent check, to assure that they yield reasonable results in particular cases." Id. at 807. The Supreme Court noted one boundary line that has been drawn by Congress: "Agreements are unenforceable to the extent that they provide for fees exceeding 25 percent of the past-due benefits. Within the 25 percent boundary... the attorney for the successful claimant must show that the fee sought is reasonable for the services rendered." Id. (footnotes and citations omitted). Put differently, if such an agreement refers to fees within the statutory ceiling, then the court must "review for reasonableness fees yielded by those agreements." Id. at 809.

The Supreme Court has further explained that "[c]ourts that approach fee determinations by looking first to the contingent-fee agreement, then testing it for reasonableness, have appropriately reduced the attorney's recovery based on the character of the representation and the results the representative achieved." Id. at 808. Another reason to reduce a fee is if the "attorney is responsible for delay, " which is necessary "so that the attorney will not profit from the accumulation of benefits during the pendency of the case in court." Id. Additionally, as Supreme Court Justice Ruth Bader Ginsburg wrote in Gisbrecht, "If the benefits are large in comparison to the amount of time counsel spent on the case, a downward adjustment is similarly in order." Id. To assist a court in its assessment of the reasonableness of the fee yielded by a fee agreement, the court may ask the claimant's attorney to submit "a record of the hours spent representing the claimant and a statement of the lawyer's normal hourly billing charge for noncontingent-fee cases." Id .

In addition, when courts determine the proper amount of attorney's fees, pursuant to § 406(b), "it is appropriate to consider the amount of attorney fees that might have been awarded under the EAJA." Harlow v. Astrue, 610 F.Supp.2d 1032, 1034 (D. Neb. 2009). Some district courts have reduced awards under § 406(b) by an amount equal to the forgone EAJA fees. See id. (finding that because the "hypothetical EAJA fee [of $7, 517.13] exceeds the $5, 524.60 fee that Plaintiff's counsel now seeks to recover out of his client's past-due Social Security benefits, the § 406(b) motion will be denied."); see also Sangwin v. Astrue, No. Civ. 04-5309, 2008 WL 5156317 (W.D.Ark. Sep. 2, 2008), report and recommendation adopted as modified by 2008 WL 5156316, *1 (W.D.Ark. Dec. 8, 2008) (§ 406(b) award reduced by amount of EAJA fees that would have been awarded had plaintiff's counsel sought such fees, based upon ...

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