United States District Court, M.D. Tennessee, Nashville Division
MEMORANDUM OPINION AND ORDER
BARBARA D. HOLMES UNITED STATES MAGISTRATE JUDGE.
action is before the undersigned for all further proceedings
pursuant to the consent of the parties and referral from the
District Judge in accordance with 28 U.S.C. § 636(c).
See Docket Entry (“DE”) 22. Currently
pending is counsel for Plaintiff's
petition0F for an award of attorney's fees
pursuant to 42 U.S.C. § 406(b), in which counsel
requests an award of $14, 296.50. DE 29 at 1. Defendant has
indicated that it neither supports nor opposes this request.
DE 35 at 1. For the reasons that follow, Plaintiff's
petition (DE 29) is DENIED.1F
March 27, 2017, the Court entered an order and accompanying
memorandum opinion granting Plaintiff Phillip Bumpus'
motion for judgment on the administrative record, which
reversed the decision of the Social Security Administration
denying Plaintiff Disability Insurance Benefits
(“DIB”) and Supplemental Security Income
(“SSI”) and remanded the case to the Commissioner
for further proceedings. See DE 23, 24. Following
entry of that order, counsel for Plaintiff, David C. Downard,
filed a motion for attorney's fees in the amount of $2,
574.50 under the Equal Access to Justice Act
(“EAJA”), which was granted. See DE 26,
Mr. Downard passed away in the interim between the EAJA award
and the current motion. On May 2, 2019, Joseph Dalton, Jr.,
who purports to be the “managing attorney for Downard
& Associates” (DE 29 at 1), filed the instant
motion for attorney's fees pursuant to 42 U.S.C. §
406(b). Counsel attaches to his motion exhibits indicating
that on March 2, 2018, following remand to the Commissioner,
Plaintiff received a fully favorable decision and was awarded
$87, 492.00 in past-due benefits. See DE 29-8. The
Commissioner has withheld $16, 871.00 from that award, which
is described as “the balance of 25 percent of the past
due benefits payable to Phillip Bumpus” for purposes of
paying attorney's fees resulting from this favorable
decision (DE 29-4), as contemplated by 42 U.S.C. §
LEGAL PRINCIPLES AND DISCUSSION
discussion of the methods by which attorney's fees are
awarded is warranted in this case. There are three statutory
provisions that address payment of fees to attorneys who
represent claimants in social security appeals. The first is
the EAJA, 28 U.S.C. § 2412(d), which authorizes district
courts to require the United States to pay an award of
attorney's fees to a “prevailing party” in a
civil action against the United States or one of its
agencies, such as the Social Security Administration.
See 28 U.S.C. § 2412(d)(1)(A). A claimant who
wins a remand at the federal level is deemed a
“prevailing party” regardless of whether the
claimant ultimately receives benefits from the Commissioner,
and an EAJA award does not impact the amount in past-due
benefits received by the claimant since the cost of the award
is borne by the Social Security Administration.
second provision is found in 42 U.S.C. § 406(a), which
covers work performed by the claimant's representative at
the administrative level. Unlike EAJA fees, an award under
§ 406(a) allows an attorney to recover a portion of any
past-due benefits awarded to a claimant following a favorable
decision by an administrative law judge (“ALJ”).
See 42 U.S.C. § 406(a)(2)(A). This provision
authorizes the Commissioner, and not the district court, to
award fees that generally total no more than $6, 000.00.
See Tibbetts v. Comm'r of Soc. Sec., No.
1:12-cv-894, 2015 WL 1637414, at *2-3 (S.D. Ohio Apr. 13,
last provision involving attorney's fees and the one
relevant to the instant motion is contained in 42 U.S.C.
§ 406(b), which allows a claimant's representative
to recover attorney's fees of up to 25 percent of
past-due benefits for work performed in federal court as part
of a social security appeal. Such an award is only available
to counsel when a claimant receives a favorable decision from
an ALJ following remand from federal court. Id.
§ 406(b)(1)(A). Because the award reduces the amount of
past-due benefits recovered by the claimant, it generally
must be memorialized by a fee agreement, usually one of a
contingency nature, entered into by both the claimant and the
attorney. Tibbetts, 2015 WL 1637414, at *2.
Moreover, counsel may apply for fees under both the EAJA and
42 U.S.C. § 406(b) but must refund to the claimant
whichever of the two amounts is smaller. Gisbrecht v.
Barnhart, 535 U.S. 789, 796 (2002).
Court is required to examine the “reasonableness”
of the fee requested under § 406(b) even if not opposed
by the Commissioner. Gisbrecht, 535 U.S. at 807.
This is especially important since the Commissioner does not
have a “direct financial stake” in the
disbursement of any funds under § 406(b), and instead
plays a trustee-like role in the process. Id. at
798, n.6. Any contingency fee agreement existing between the
requesting attorney and the claimant that calls for the
attorney to receive 25 percent of a claimant's past-due
benefits award is “given the weight ordinarily accorded
a rebuttable presumption.” Hayes v. Sec'y of
Health & Human Servs., 923 F.2d 418, 421 (6th Cir.
1990). However, it remains this Court's role to review
any such fee arrangement “as an independent check to
assure that [it] yields reasonable results, ”
Gisbrecht, 535 U.S. at 807, which can result in
reduction of the award based on “improper conduct or
ineffectiveness of counsel” or in situations where the
attorney would “enjoy a windfall because of either an
inordinately large benefit award or from minimal effort
expended.” Rodriquez v. Bowen, 865 F.2d 739,
746 (6th Cir. 1989). Other factors in considering the
reasonableness of a fee agreement include the effective
hourly rate, the timeliness of the motion requesting
attorney's fees, the Commissioner's opposition or
lack thereof, and the “brevity” and/or
“relative simplicity” of the representation
provided by counsel. Lasley v. Comm'r of Soc.
Sec., 771 F.3d 308, 310 (6th Cir. 2014).
these principles in mind, the Court notes several problems
with Mr. Dalton's petition. First, the request is clearly
untimely. The Local Rule pertaining to attorney's fees in
social security cases, which is more lenient than
Fed.R.Civ.P. 54(d)(2)'s general mandate that motions for
attorney's fees be filed within 14 days after entry of
judgment, requires that any request for fees under §
406(b) be filed within 30 days after counsel “has
received all of the Notices of Award that are necessary to
calculate the total amount of retroactive benefits
payable.” LR 54.01(b)(3)(B). The Notice of Award
following remand in this matter, which contained the amount
in past-due benefits owed to Plaintiff, was issued on May 23,
2018, almost one year prior to counsel's filing of the
current motion on May 2, 2019. See DE 29-3. The
Commissioner later advised counsel's office that 25
percent of Plaintiff's past due benefits, $16, 871.00,
was being withheld specifically for § 406(b) purposes on
February 25, 2019, which is still 66 days before the current
motion was filed. DE 29-4 at 2. Such a delay is not
necessarily fatal to Mr. Dalton's petition, particularly
in light of Mr. Downard's passing, 3F based on the
Local Rule's provision that untimely motions may be
considered “only upon a showing of good cause for the
delay.” LR 54.01(b)(3)(B). Mr. Dalton's brief,
however, contains no such showing.4F
Mr. Dalton attaches as an exhibit to his brief a fee
agreement in place when Mr. Downard was retained to represent
Plaintiff in this case, which is labeled “Agreement for
Representation Before the Social Security
Administration.” See DE 29-5. Conspicuously
absent from this agreement is any reference to fees derived
from representation for legal work performed in federal court
under 42 U.S.C. § 406(b).
arrangement instead contemplates fees related to 42 U.S.C.
§ 406(a) only, stating that “fees being paid by
the Client to Downard & Associates will be subject to
approval by the Social Security
Administration” and shall represent the lesser of
25 percent of the total past-due benefits award or “the
dollar amount as provided by 42 U.S.C. §
406(a)(2)(A).” DE 29-5 at 2 (emphasis added).
As discussed above, this Court is without any authority to
award attorney's fees for proceedings before the Social
Security Administration pursuant to 42 U.S.C. § 406(a).
Cf. Booth v. Comm'r of Soc. Sec., 645 Fed.Appx.
455, 458 (6th Cir. 2016) (noting that § 406(b) permits
recovery of fees for court representation). See also
Horenstein v. Sec'y of Health & Human
Servs., 35 F.3d 261, 262 (6th Cir. 1994) (“[E]ach
tribunal may award fees only for the work done before
it.”). At best, this presents an obstacle to any
consideration by the Court of the
“reasonableness” of any fee agreement involving
counsel's work before this Court. Bluer v. Comm'r
of Soc. Sec., No. 1:13-cv-22, 2015 WL 7106935, at *2
(W.D. Mich. Nov. 13, 2015) (“In determining the
reasonableness of fees under § 406(b), the starting
point is the contingency fee agreement between the claimant
and counsel.”) (citing Gisbrecht, 535 U.S. at
807). At worst, the lack of an appropriate fee agreement
precludes recovery of fees under § 406(b).
Rodriquez, 865 F.2d at 746 (noting that when
evaluating a petition for fees under § 406(b), the court
“should  look to whether a fee agreement has been
executed by the claimant and the claimant's
Mr. Dalton holds himself out as the “managing attorney
for Downard & Associates, ” yet requests fees
“on behalf of the estate of David Downard based on the
fees due to David Downard[.]” DE 29 at 1. As noted in
Defendant's response, there is no indication in Mr.
Dalton's filing that he in fact represents the executor
of Mr. Downard's estate.5F This is not insignificant given
the Commissioner's policy that in the event of a
claimant's representative's death prior to receipt of
payment for services to which the claimant is entitled, the
Commissioner will “certify direct payment ... only to
the executor or other person the State recognizes as the
representative of the deceased representative's
estate.” Program Operations Manual GN 03940.009(B),
visited August 21, 2019). Mr. Dalton makes no such proffer
and instead, confusingly, relies on a document entitled
“Affidavit of David C. Downard” that merely
recites Mr. Downard's experience representing social
security applicants but is electronically signed by ...