United States District Court, M.D. Florida, Orlando Division
B. SMITH United States Magistrate Judge
before the Court is Richard A. Culbertson's Uncontested
Second Supplemental Request for Authorization to Charge a
Reasonable Fee Pursuant to 42 U.S.C. §406(b) (Doc. 26).
Court previously observed (Doc. 27), the motion presents with
an unusual history. On February 21, 2014, the Court entered
an Order, reversing and remanding this cause back to
Defendant the Commissioner of Social Security for further
proceedings, pursuant to sentence four of 42 U.S.C. §
405(g) (Docs. 17-18). On subsequent motion, the Court granted
Plaintiff's petition for attorney's fees under the
Equal Access to Justice Act, 28 U.S.C. § 2142(d) (the
“EAJA”) (Doc. 23), in the amount of $3, 983.10
the court-ordered remand, the Commissioner found Plaintiff
Ellen Ann Spencer disabled and awarded her $43, 412.50 in
past-due benefits (Doc. 21-2). Based on the result,
Plaintiff's counsel, Mr. Culbertson, sought and was
awarded $870 in attorney's fees pursuant to 42 U.S.C.
§ 406(b) (Docs. 21, 22).
15, 2015, Administrative Law Judge M. Hart issued an order
approving the fee agreement between Mr. Culbertson and
Plaintiff, pursuant to 42 U.S.C. § 406(a)(2)(A) (Doc.
26-3). The amount of the fee for work done at the
administrative level pursuant to 42 U.S.C. § 406(a) was
$6, 000.00, and this amount was paid to Mr. Culbertson in
September 2015 (Doc. 26-2).
April 2, 2016, the Commissioner notified Plaintiff that her
past-due benefits were $56, 913.90 (Doc. 23-2). Mr.
Culbertson filed a timely Supplemental Request for
Authorization to Charge a Reasonable Fee in the amount of $3,
102.25, based on the new notice changing the amount of
past-due benefits (Doc. 23). Then, on May 8, 2016, the
Commissioner notified Plaintiff by letter that she is
entitled to past-due benefits in the amount of $55, 821 (Doc.
26-2). The Commissioner explained that the previous notice
showed a higher amount because it included Plaintiff's
benefit for August 2015, which was not subject to attorney
fee withholding (Doc. 24-1). The Court accepted the updated
accounting, and granted the Supplemental Request, in part,
approving Section 406(b) fees in the amount of $3, 102.15
(Doc. 25). This did not conclude the matter.
February 15, 2017, the Commissioner notified Mr. Culbertson
that a regional administrative judge had made a unilateral
determination on April 16, 2016, disapproving the fee
agreement which had already been approved by Administrative
Law Judge Hart on July 15, 2015 (Doc. 26-4). No reason is
offered in the notification, which provides, in part:
“If you are charging a fee, you need to file a fee
petition within 30 days from the date of this notice.”
(Id.). Mr. Culbertson objects to the action of the
regional administrative judge disapproving his previously
approved fee agreement, but files the instant motion as
“he is still required to file a Second Supplemental
Request for Authorization to Charge a Reasonable Fee unless
this Court issues an Order determining the Commissioner did
not have the authority to “unauthorize” the
administrative fee.” (Doc. 26 at 6).
with this unusual set of circumstances, the Court directed
the Commissioner to file a response to the motion, addressing
“the relevant history of this proceeding, the extent of
the Court's authority to remedy the situation, and the
appropriate remedy” (Doc. 27). The Commissioner filed
her response (Doc. 28) and a supporting declaration (Doc.
29). Although Mr. Culbertson's motion purports to be
“uncontested, ” the Commissioner now takes the
position that the Court is without authority to grant him the
relief he is seeking and argues that the motion must be
denied as premature or duplicative (Doc. 28).
the Commissioner's apparent change of heart, the Court
gave Mr. Culbertson leave to file a reply (Doc. 30). He has
now done so (Doc. 31), and his motion is ripe for
are three statutory provisions under which attorneys
representing claimants in Social Security disability cases
may be compensated: 42 U.S.C. §§ 406(a) and 406(b),
and 28 U.S.C. § 2142(d). Section 406(a) provides the
exclusive avenue for attorneys seeking fees for work done
before the Commissioner at the administrative level. The fees
awarded under §406(a) are paid out of the claimant's
past-due benefits awarded. 42 U.S.C. § 406(a)(2)(A) and
(B). Section 406(a) caps the fees that may be awarded at
twenty-five percent of past-due benefits awarded or a lesser
fixed amount. 42 U.S.C. § 406(a)(2)(A)(ii)(I)-(II).
fees incurred representing claimants in federal court,
claimants and their attorneys may seek fees under two
statutory provisions, 42 U.S.C. § 406(b) and the EAJA.
Under Section 406(b), upon entry of judgment in favor of a
claimant, the Court may award a reasonable fee for work
performed before the Court, which is paid out of the
claimant's past-due benefits awarded. 42 U.S.C. §
406(b)(1)(A). Section 406(b) imposes a cap on the total
amount of fees that may be awarded. 42 U.S.C. §
406(b)(1)(A). Section 406(b) provides that the Court may not
award fees “in excess of 25 percent of the total of the
past-due benefits to which the claimant is entitled.”
42 U.S.C. § 406(b)(1)(A). In capping the fee at
twenty-five percent, “Congress ... sought to protect
claimants against ‘inordinately large fees' and
also to ensure that attorneys representing successful
claimants would not risk ‘nonpayment of ...