United States District Court, N.D. Indiana, Fort Wayne Division
WENDELL D. PARKER, Plaintiff,
ANDREW SAUL, Commissioner of the Social Security Administration, Defendant.
OPINION AND ORDER
THERESA L. SPRINGMANN CHIEF JUDGE
matter is before the Court on the Plaintiff's
Attorney's Motion for an Award of Attorney Fees under 42
U.S.C. § 406(b) [ECF No. 24], filed on May 20, 2019. The
Motion requests an award of attorney fees in the amount of
$12, 215.00 pursuant to the Social Security Act, 42 U.S.C.
§ 406(b), for representation of the Plaintiff in federal
court. The Commissioner has no objection to the amount
requested. See Def.'s Resp., ECF No. 25. For the
reasons set forth below, the Court denies the motion without
prejudice with leave to refile once the Social Security
Administration has resolved the issue of fees under 42 U.S.C.
Plaintiff initiated this action for judicial review of the
Commissioner of Social Security's decision denying his
application for disability insurance benefits. On September
14, 2017, the Court granted the Plaintiff's request,
reversing and remanding for further proceedings. Under 42
U.S.C. § 2412, the Court awarded $3, 705.00 in EAJA fees
on December 18, 2017.
remand, an Administrative Law Judge (ALJ) found that the
Plaintiff has been disabled since February 2012 and issued a
Notice of Decision-Fully Favorable. Pl.'s Att'y's
Mot. for an Award of Att'y Fees Under 42 U.S.C. §
406(b), Ex. D, ECF No. 24-4. The same date, the ALJ also
issued an Order disapproving of the fee agreement between the
Plaintiff and his representative at the administrative level,
triggering a fee petition process for § 406(a) fees.
Id. at 4.
April 10, 2019, the Social Security Administration issued a
Notice of Award, awarding the Plaintiff $139, 883.50 in
past-due Social Security benefits. Pl.'s Att'y's
Mot. for an Award of Att'y Fees Under 42 U.S.C. §
406(b), Ex. E, p. 3, ECF No. 24-5. Twenty-five percent of the
past-due benefits is $34, 970.88. Id. This amount
was withheld by the Social Security Administration for the
payment of fees. Id. The Notice of Award also
provides the procedure by which the representative at the
administrative level can seek fees. Id.
Social Security Act allows for a reasonable fee to be awarded
both for representation at the administrative level,
see 42 U.S.C. § 406(a), as well as
representation before the Court, see 42 U.S.C.
§ 406(b). See Culbertson v. Berryhill, 139
S.Ct. 517, 520 (2019) (quoting Gisbrecht v.
Barnhart, 535 U.S. 789, 794 (2002)). Under §
406(b), the Court may award a reasonable fee to the attorney
who has successfully represented the claimant in federal
court, not to exceed twenty-five percent of the past-due
benefits to which the social security claimant is entitled.
42 U.S.C. § 406(b)(1)(A); Gisbrecht, 535 U.S.
at 792. The twenty-five percent cap applies only to fees for
court representation and not to the aggregate fees awarded
under Sections 406(a) and 406(b). Culbertson, 139
S.Ct. at 523. However, an award of EAJA fees under 42 U.S.C.
§ 2412 offsets an award under § 406(b).
Gisbrecht, 535 U.S. at 796.
instant motion, counsel for the Plaintiff requests an award
of fees under § 406(b) for representation of the
Plaintiff in federal court in the amount of $12, 215.00,
which is in addition to the EAJA award of $3, 705.00, for a
total fee award of $15, 920.00. Counsel correctly notes that
the requested total amount of $15, 920.00 does not exceed
twenty-five percent of past-due benefits ($34, 970.88) in
conformity with § 406(b) and the fee agreement between
the Plaintiff and counsel for representation in federal
for the Plaintiff also informs the Court that, at the time of
filing the instant motion, the Social Security Administration
had still not resolved the issue of § 406(a) fees that
may be payable to the Plaintiff's hearing
representative/attorney. In light of the Supreme Court's
recent holding in Culbertson “that the statute
does not impose a 25% cap on aggregate fees” sought
under § 406(a) and § 406(b), Culbertson,
139 S.Ct. at 523, there is no statutory requirement that this
Court await a determination of a § 406(a) fee award by
the Social Security Administration before this Court
determines a reasonable fee under § 406(b).
the fee agreement entered into by counsel and the Plaintiff
for representation in federal court provides otherwise:
D. In a case in which the court awards both a fee
from my past-due benefits under 42 U.S.C. § 406(b)
and an EAJA fee, attorney will refund to me the
smaller of the two amounts or will otherwise ensure that the
EAJA fee award is deducted from any 42 U.S.C. § 406(b)
fee award. Any administrative fee that the Agency pays to
my hearing lawyer under 42 U.S.C. § 406(a) will also be
deducted from any § 406(b) award. Under no circumstances
will the total fees awarded for work under § 406(b) in
the U.S. District Court and/or in a higher U.S. Court
exceed twenty-five percent (25%) of any past-due
benefits awarded to me and my family by the Social Security
Pl.'s Att'y's Mot. for an Award of Att'y Fees
Under 42 U.S.C. § 406(b), Ex. A, § 2.D, ECF No.
24-1 (italicized emphasis added). In Culbertson,
there is no suggestion that the fee agreement contained
similar language; rather, the opinion indicates that
contingency-fee agreement was for representation in
“Federal Court” and that “the agreement