CHARLES F. EICK, United States Magistrate Judge.
On December 20, 2010, counsel for Plaintiff filed "Counsel's Notice of Motion
The Court previously remanded this matter to the Commissioner for further administrative action pursuant to sentence six of 42 U.S.C. section 405(g). See "Memorandum Opinion and Order of Remand," filed on February 1, 2010 (finding that Plaintiff had submitted "new evidence" material to the disability determination). On remand, an Administrative Law Judge ("ALJ") held a hearing at which Plaintiff was represented by his current counsel (Motion, Ex. 2 at 6). The ALJ found Plaintiff disabled, and the Administration subsequently awarded past-due benefits to Plaintiff totaling $40,069 (Motion, Ex. 2 at 6-16 (ALJ's favorable decision); Ex. 3 at 3). From that award, the Administration has withheld 25 percent, or $10,017.25, for a possible award of attorney fees under 42 U.S.C. section 406 (Motion, Ex. 3 at 2).
Following the Administration's award of benefits, in accordance with a stipulation by the parties, the Court entered judgment for Plaintiff and awarded Plaintiff $6,400 in attorney fees and expenses under the EAJA. See "Judgment" filed on December 15, 2010; "Order Awarding [EAJA] Attorney Fees and Expenses Pursuant to 28 U.S.C. § 2412(d)" filed on January 18, 2011; see also "Stipulation for the Award and Payment of Attorney Fees and Expenses Pursuant to the [EAJA], etc." filed on December 20, 2010 ("Stipulation").
Plaintiff's counsel represented Plaintiff under a contingent fee agreement providing for fees in the amount of 25 percent of past-due benefits for work before the court. See Motion, Ex. 1 (providing for a fee of 25 percent of past-due benefits awarded upon reversal of any unfavorable ALJ decision for work before the Administration, and a "separate" fee of 25 percent of past-due benefits awarded upon reversal of any unfavorable ALJ decision for work before the court). Twenty-five percent of the past-due benefits awarded is $10,017.25—a fee slightly larger than the $10,000 counsel now is seeking under section 406(b).
Attorneys who successfully represent Social Security claimants may petition for fee awards under 42 U.S.C. sections 406(a) and (b), and/or under the EAJA, as applicable. "Section 406(a) grants the Social Security Administration exclusive jurisdiction
Where, as here, the claimant prevails in district court, the claimant also may seek attorney fees under the EAJA. The EAJA authorizes a court to award attorney fees to a prevailing party "in any civil action" against the United States, "unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust." 28 U.S.C. § 2412(d)(1)(A) (emphasis added).
Fees recovered under sections 406(a) and (b) are paid to the attorney from the claimant's past-due benefits, whereas fees recovered under the EAJA are paid by the federal government. See 42 U.S.C. § 406(b)(1)(A) (fee is payable "out of, and not in addition to, the amount of [ ] past-due benefits"); see also 20 C.F.R. §§ 404.1720(b)(4), 404.1728(b), 404.1730, 416.1520(b)(4), 416.1528, 416.1530 (providing that fees payable under sections 406(a) and 406(b) are paid out of a claimant's past-due benefits); 28 U.S.C. § 2412(b) (providing that the United States is liable for fees payable under the EAJA); see also Freedle v. Bowen, 674 F.Supp. 799, 800-01 (D.Nev.1987) (discussing difference between EAJA's fee-shifting structure and fees available under the Social Security Act).
When an attorney receives fees under both section 406(b) and the EAJA "for the same work," the attorney must reimburse the claimant for the smaller of the two awards, as provided in legislation enacted in 1985 (Act of Aug. 5, 1985, Pub.L. No. 99-80, § 3, 99 Stat. 183) (published in the notes following 28 U.S.C. § 2412) ("Public Law No. 99-80"):
(emphasis added).
Four years after the enactment of Public Law No. 99-80, the Supreme Court decided Sullivan v. Hudson, 490 U.S. 877, 109 S.Ct. 2248, 104 L.Ed.2d 941 (1989) ("Sullivan"). The Sullivan Court held for the first time that a prevailing claimant could recover attorney fees under the EAJA not only for the time spent by the attorney representing the claimant in court, but also for the time spent by the attorney representing the claimant in administrative proceedings subsequent to a remand under sentence six of 42 U.S.C. section 405(g). The Court explained:
Sullivan, 490 U.S. at 892, 109 S.Ct. 2248.
42 U.S.C. § 406(b)(1)(A) (emphasis added). According to the United States Supreme Court, section 406(b):
Gisbrecht, 535 U.S. at 807, 122 S.Ct. 1817 (citations omitted).
The hours spent by counsel representing the claimant and counsel's "normal hourly billing charge for noncontingent-fee cases" may aid "the court's assessment of the reasonableness of the fee yielded by the fee agreement." Gisbrecht, 535 U.S. at 808, 122 S.Ct. 1817. The Court appropriately may reduce counsel's recovery:
Id. (citations omitted).
Here, the fee Plaintiffs counsel seeks does not exceed the agreed-upon 25 percent of past-due benefits for work before the Court. Neither "the character of the representation" nor "the results the representative achieved" suggest the unreasonableness of the fee sought. Plaintiffs counsel was not responsible for any significant delay in securing Plaintiffs benefits. Because the present case is legally indistinguishable from Crawford v. Astrue, 586 F.3d 1142 (9th Cir.2009), this Court is unable to find that a comparison of the benefits secured and the time Plaintiffs counsel spent on the matter suggest the unreasonableness of the fee sought. Therefore, the Court concludes that "the fee sought is reasonable for the services rendered," within the meaning of Gisbrecht.
Counsel has provided an itemized billing statement for the time counsel and his paralegal spent representing Plaintiff before the Court and before the Administration (Motion, Ex. 4). Counsel reports 21.5 hours of attorney time and 2.9 hours of paralegal time spent before the Court, and 14.6 hours of attorney time and 4.4 hours of paralegal time spent before the Administration on remand (Id.). Compensating counsel at the prevailing EAJA hourly rates, which differ slightly from those rates counsel reports (compare Motion, Ex. 5),
Attorney Court Time Year EAJA Rate Total 19.5 hours 2009 $ 172.24 $3,358.68 2.0 hours 2010 $ 175.06 $ 350.12 ________ $ 3,708.80Attorney Administration Time 14.6 hours 2010 $ 175.06 $2,555.88 Total Attorney Compensation $6,264.688
Counsel reports billing his paralegal's time at $112.12 per hour for EAJA purposes (Motion at 6). Compensating the paralegal's time at this rate yields the following calculations:
Paralegal Court Time Rate Total 2.9 hours $112.12 $325.15Paralegal Administration Time 4.4 hours $112.12 $493.33 Total Paralegal Compensation $818.48
If compensated according to these rates, Plaintiffs counsel arguably would have been entitled to $7,083.16 in EAJA fees for time spent by counsel and his paralegal in representing Plaintiff (i.e., $6,264.68 attorney time + $818.48 paralegal time). See Sullivan, 490 U.S. at 892, 109 S.Ct. 2248. However, the parties stipulated to an EAJA compromise settlement of $6,400 for "all legal services rendered on behalf of Plaintiff by counsel in connection with this civil action" (Motion at 6; see also Stipulation at 1-2). Plaintiffs counsel has offered to assume that 100 percent of the time that counsel and his paralegal spent before the Court was compensated in the EAJA award, despite the compromise nature of the award (Motion at 6). Giving Plaintiff credit for all the attorney and paralegal time spent before the Court would yield a refund of $4,033.95 (i.e., $3,708.80 attorney time + $325.15 paralegal time)—an amount slightly less than the $4,080 refund counsel proposes.
Defendant contends that counsel should refund to Plaintiff the entire EAJA award of $6,400, even though part of this award represents work done before the Administration.
Gisbrecht, 535 U.S. at 796, 122 S.Ct. 1817 (quoting Pub.L. No. 99-80). However, the general language in Gisbrecht does not necessarily answer the specific question posed in the present case: Does Public Law No. 99-80 require a claimant's attorney who receives a section 406(b) fee to refund the entirety of a lesser EAJA fee award, even when the EAJA award included an amount for time spent before the Administration following a sentence six remand?
By its express terms, Public Law No. 99-80 requires a claimant's attorney to refund the smaller of the two fees only "where the claimant's attorney receives fees for the same work under both [section 406(b) ] and [the EAJA]." See Pub.L. No. 99-80 (emphasis added). As explained above, section 406(b) provides for attorney fees only for time spent "before the court." 42 U.S.C. § 406(b)(1); see Clark, 529 F.3d at 1215 ("[section] 406(b) empowers courts to award attorney's fees based only on representation before the court"); but see Nunez Sanchez v. Commissioner of Social Sec., 2008 WL 8053665, at *7 (D.Puerto Rico Apr. 23, 2008), adopted, 2010 WL 3282943 (D.Puerto Rico Aug. 17, 2010) (stating that court may award section 406(b) fees for the work performed during administrative proceedings). In the Ninth Circuit at least, it necessarily follows that the portion of an EAJA fee awarded for work in administrative proceedings after a sentence six remand cannot have been "for the same work" as the work compensated by a section 406(b) award.
The Court acknowledges that the present decision finds little or no support in case law. Most if not all other courts awarding 406(b) fees and lesser EAJA fees following sentence six remands ordered the refund of the entire EAJA fee, but those courts did so without specifically acknowledging or addressing the issue discussed herein.
A few courts have touched on the issue discussed in the present case without directly adjudicating the issue. In Garcia v. Astrue, 500 F.Supp.2d 1239, 1244, n. 6 (C.D.Cal.2007), the court mentioned in a footnote the possibility of refunding less than a full EAJA fee award following a sentence six remand. The Garcia Court rejected the Commissioner's contention that the claimant's counsel was not required to offset against a section 406(b) award the entire EAJA fee previously awarded, which reportedly had included compensation for work before the Administration. Without further explanation, the Garcia Court observed that counsel already had recovered fees under section 406(a) for counsel's post-sentence six administrative work, so there assertedly was no need for apportionment of the EAJA fee. Garcia v. Astrue, 500 F.Supp.2d at 1244, n. 6.
In Free v. Astrue, 2010 WL 5575278, at *3 (E.D.Tenn. Dec. 15, 2010), report and recommendation adopted by 2011 WL 111676 (E.D.Tenn. Jan. 13, 2011), the court granted an attorney's section 406(b) and EAJA fee requests following a sentence six remand. In so doing, the Free Court indicated that the claimant's counsel would be required to refund the smaller of the section 406(b) fees and the EAJA fees "for the same work." The claimant's attorney evidently had submitted that the claimant should receive a full offset of the EAJA fee, even though the EAJA fee would include compensation for post-remand administrative work, because counsel previously had been compensated under section 406(a). Id. at *3. The Free Court stopped short of commenting directly on counsel's submission, saying: "Therefore, this Court finds that should both the petition and [sic] for EAJA and 406(b) attorney's fees be
Lastly, in Kopulos v. Barnhart, 318 F.Supp.2d 657, 667 (N.D.Ill.2004), a case involving a sentence four remand, the court rendered a seemingly sui generis interpretation of the "for the same work" terminology in Public Law No. 99-80. The Kopulos Court essentially translated "for the same work" to mean "for any work done on the same claim." Id. The issue in Kopulos did not concern EAJA fees that represented both administrative work and work before the court. Rather, the issue in Kopulos was whether multiple EAJA fee awards for work before the court in a case that had been remanded several times should be offset against a section 406(b) fee award, even though the first few remands arguably did not result in the award of benefits. The Kopulos Court conceded that its translation of "for the same work" to mean "for any work done on the same claim" purposed the maximization of benefits to claimants and the minimization of the work of reviewing courts. Id. at 667-68.
This Court finds unpersuasive the Kopulos Court's interpretation of Public Law No. 99-80. Simply stated, "for the same work" means "for the same work," not "for any work done on the same claim." "[T]he meaning of the statute must, in the first instance, be sought in the language in which the act is framed, and if that is plain ... the sole function of the courts is to enforce it according to its terms." Caminetti v. United States, 242 U.S. 470, 485, 37 S.Ct. 192, 61 L.Ed. 442 (1917); see United States Nat'l Bank v. Independent Ins. Agents of America, 508 U.S. 439, 454, 113 S.Ct. 2173, 124 L.Ed.2d 402 (1993) ("[a] statute's plain meaning must be enforced"); Cowart v. Nicklos Drilling Co., 505 U.S. 469, 475, 112 S.Ct. 2589, 120 L.Ed.2d 379 (1992) ("when a statute speaks with clarity to an issue[,] judicial inquiry ... is finished"). The drafters of Public Law No. 99-80 could have dispensed entirely with the phrase "for the same work" if the drafters had intended to require a full refund to the claimant whenever the EAJA and section 406(b) awards arose out of the same claim. This Court hesitates to follow the Kopulos Court's apparent determination that Congress chose to employ a wholly superfluous phrase in Public Law No. 99-80. See Bennett v. Spear, 520 U.S. 154, 173, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997) ("a cardinal principle of statutory construction ... is to give effect, if possible, to every clause and word of a statute") (citations and quotations omitted); Walters v. Metropolitan Educ. Enter., 519 U.S. 202, 209, 117 S.Ct. 660, 136 L.Ed.2d 644 (1997) ("statutes must be interpreted, if possible to give each word some operative effect").
Although the matter appears beyond the scope of the present case, the Court observes that a straightforward interpretation of Public Law No. 99-80 threatens to enable attorneys less scrupulous than present counsel to recover and retain duplicative fees for the same administrative work. An attorney theoretically could recover section 406(a) fees and EAJA fees for the same post-sentence six remand administrative work, and Public Law No. 99-80 would have nothing to say about the matter.
For all the foregoing reasons, section 406(b) fees are allowed in the gross amount of $10,000, to be paid out of the sums withheld by the Commissioner from Plaintiffs benefits. Counsel shall reimburse Plaintiff in the amount of $4,033.95.
IT IS SO ORDERED.
H.R.Rep. No. 99-120(I), at § 3 (1985), reprinted in 1985 U.S.C.C.A.N. 132, 148-49.
